Capacity to testate often becomes a reason to contest a Will. In Laroque c Gagnon (2016 QCCA 1237) the Court of Appeal has looked into the case where the person signed a Will, while already being incapable totally and permanently, according to his medical file. He died two weeks later.
At the trial the new evidence came up. According to the evaluation made closer to the date of signing the Will, the deceased was lucid in the interval of time in question and was capable to testate at the moment of signing. The judge particularly paid attention to the fact that the new Will was more or less in line with the previous ones. This made the provisions of the new Will, in the eyes of the judge, not “unreasonable”.
The Court of Appeal dismissed the claim. It affirmed the presumption that everyone is in his sane mind. Therefore, the burden of proof falls on the party claiming incapacity. Capacity to testate is a question of fact, said the Court. Accordingly, the judge of the first instance is in a better position to rule on this question. The Court of Appeal agreed with the judge of the first instance that the testimonies of the ordinary witnesses (relatives of the deceased) were of less value than those of doctors and social workers. Finally, the Court of Appeal reaffirmed: while probation of a Will is appealable only with leave, a decision to invalidate (annul) a Will is appealable as of right.
This blog post contains only general information, please don’t take it for a legal advice. For all legal questions regarding your particular situation do not hesitate to consult your lawyer.
