Illuminating capacity to make a will: It's about the moment. The focus. And the picture.

  • December 10, 2018
  • Benjamin Kormos

Note:  This article was originally published on LinkedIn on July 22, 2018. It is republished with permission from the author.

Enlightenment roots, with a modern ‘modest proposal?’

As Ian Hull, Dr. K.I. Shulman and other learned writers recently noted in their paper Banks v Goodfellow (1870): Time to update the test for testamentary capacity, the test that helps courts decide whether someone has enough mental ability to make a new will has its roots in the late 1800s.

My comments below build on, rather than replace, the excellent and considered comments the authors make. I suggest you first review their writing for the essential background.

I agree with many of the observations they make in the article. My comments are intended as some respectfully-added food for legal and social thought, in a philosophical sense. Not as a fixed or comprehensive expression of "the law," per se.

Suffering a mental illness or diminished cognition is not a locked door for justice's halls

The Banks case considered a man suffering from likely paranoid schizophrenia. It was decided at a fortunate time for legal theory. The court, in the process of considering the man's cognitive challenges and the validity of his final will, made a new legal “test” for wills' validity where mental capacity is at stake.

Banks is post-Enlightenment legal philosophy (see: Cesare Baccaria's On Crimes and Punishments, for one good read). In my view, this is a good thing, from the standpoint that the Banks case overruled prior legal rules on wills which would simply find that when someone had a mental illness at all, they simply could not make a new Will.

The Banks test is a leap forward, toward accepting mental illnesses as a social reality. It preserves the sufferer's dignity, independence, and right to access legal tools to decide financial and estate plans.

A case for continual improvement

I agree with the authors' central conclusion that taking the individual's context into account is important, in the often complex canvas on which modern social and financial lives are painted. This is achieved by looking at their capacity to make this will, in the circumstances of the testator’s life.

Their observation that it is important not to overstate the requirement of memory is also sound. It is essential, though, that the testator have a sufficiently effective working memory to juggle the factors that matter, in the context of their life and property and relationships, to show they are, at the time they make a will, able to consider their decision freely.

From a practical standpoint, I would add that one of memory's important considerations, legally, should be that an intact and reasonably functioning and discerning memory can be protective against undue influence in the testator's decision-making process.

Likewise, the test should require the capacity assessment process to access and record the testator’s act of considering, in the sense of gaining an approximation of observing them consider. It is not sufficient to observe them remembering, or to observe them deciding.

A test that over-emphasises a comparative history of decisions for past wills also overlooks the important twin goals of balancing testamentary freedom and fostering sound decisions. 

Over-emphasising historical factors looks at the wrong moments – the past, and the future – rather than what may have the most practical impact: the testator's present moment of planning and choosing, at the time they activate their mind to the task.

Their "choosing" process is for the future, but observing it should not conflate the future with the contextual act of assessing the testator’s ability to think about such decisions. If these concepts are confused, then we risk fallacies such as taking mere rote or prompted recall, or past facts, at face value as confirming present decision-making capability.

In this sense, I would agree with the learned authors in their "Time to update the test" article above: focusing on the deliberative reasoning that is being observed is useful. 

Can the testator channel their flow of assets, at a point in time?

I would add that the temporal component is equally important in the assessment. The term
“executive function,” when read with the requirement to access and observe the testator in the present-moment act of thinking, considering, and planning, is what is paramount to achieving the purposes of a legally-rooted and defensible social judgment about a person’s choice of what to do with their worldly material holdings. 

In that sense, we can hope to less-imperfectly direct the flow of  “water through its channels” (to use an analogy of the social function of this test) in order to preserve the testator’s dignity and sense of place, while preserving what society, operating through the legal lens, deems to be socially-reliable or “sound,” independent, decisions in the normative sense.

It may also be worth considering whether the testamentary capacity test should assess vulnerability to undue influence. This is a scalable factor that is affected by memory and by the progression of the testator's cognitive challenges.

The test could include assessing vulnerability to influence, particularly where undue influence potentially exists for the testator, and likely with greater vigour when the testator’s family, business, or social situation is more complex or intertwined (even if actual influence is not overt or observed by the drafting lawyer or others).

If these modifications are considered, the test may become even more effective at accessing the testator’s thinking, rather than viewing the testator on the canvas of social expectations such as whether or not they meet an expected pattern of overt behaviour. For example, intact social graces are not, independently, sufficient either to raise or exclude mental capacity concerns, even if such behavioural cues are a factor reflecting other aspects of mental decline generally for that individual.

I thoroughly enjoyed the very succinctly put, and helpful analysis by Ian Hull, Dr. Shulman, and their co-authors, and I hope that you enjoyed reading this commentary on it.

Benjamin Kormos is  a partner with Walsh LLP in Calgary.