Last Will is not as bulletproof of a document as it seems. Not only specific formal requirements should be observed, but also the testator — the person signing the Will, should have the capacity to do so.
Required capacity to make a Last Will
Of course, it is quite clear that someone already declared to be legally incapable, cannot validly make and sign his Last Will. Contrary to certain expectations, a legal tutor, a mandatary, a Power of Attorney holder cannot sign the Last Will in someone’s stead. Therefore, if such a person did not sign a Will before the declaration of incapacity was made, there will be no last Will, and the Estate will be settled eventually according to the rules of legal devolution (as they are set in the Civil Code of Quebec).
What if there was no legal declaration of incapacity, yet significant indications of dementia, weakness of mind or another mental disorder were present at the time when the Will was signed? If the Will was notarized, and the notary was cautious enough to request a confirmation from a medical professional that the testator was capable, then the Will would be presumed valid. But if the testator did not show some manifest signs of incapacity (so that the notary would not suspect a problem) and there was no medical evaluation? In such a situation it will be up to those who wish to contest the Will to prove that the testator did not have the required capacity.
It might be done by arranging for a medical evaluation as soon as possible after the signing or, if the testator already passed away (or finally declared legally incapable), by asking the Court to access the testator’s medical file and by further obtaining an expert report. This report will be then presented before the Court together with an application to annul the last Will due to incapacity.
It is important to remember, that not every mental weakness or difficulty is equal to incapacity. The idea is that the person — at the moment of the signing — should understand what he (or she) is signing, what is written in there and — most importantly — what will be the consequences for the heirs, creditors and other persons concerned.
Some gradual memory decline, difficulty with certain cognitive operations, episodes of limited lucidity, mood swings and seemingly unreasonable, incoherent or irrational dispositions in the Will do not guarantee — per ce — the last Will annulment.
If one wishes to reinforce his (her) last Will, though, it is advisable to bring to a notary a freshly signed letter from a competent medical professional, attesting that the person has the required capacity to make and sign this last Will.
Allen Madelin Lawyers work on daily basis with Wills and Estates issues, consulting the clients and representing them in Courts. For details, please contact us by phone: 1 514 904 4017 or by email: [email protected].
