1. What Does Alberta Law Say?

2. Dementia Does Not Automatically Mean a Person Lacks Capacity

3. Evidence Considered by the Court

4. Capacity Is Different From Fairness

5. How the Process Works

6. Common Mistakes

7. Costs and Considerations

8. When Should You Speak With an Estate Lawyer?

9. How Bridgestone Law Can Help

Introduction

Testamentary capacity is one of the most important legal requirements for creating a valid will. Although the term sounds technical, it simply refers to whether the person making the will had the mental ability to understand what they were doing and the effect of the decisions they were making at the time the will was signed.

Questions about testamentary capacity often arise after a person's death, particularly where the deceased was elderly, had been diagnosed with dementia or another cognitive condition, or made significant changes to their estate plan shortly before passing away. It is important to understand, however, that a diagnosis of dementia, Alzheimer's disease, or memory loss does not automatically mean someone lacks testamentary capacity. The law focuses on the individual's ability to make a will at the specific time it was executed.

If testamentary capacity is challenged, the court will examine a wide range of evidence, including medical records, witness testimony, the lawyer's observations, and the circumstances surrounding the preparation and signing of the will. The central question is whether the testator understood the nature of making a will, the extent of their property, the people who might reasonably expect to benefit from their estate, and the practical effect of the distribution they chose.

Understanding what testamentary capacity means, how Alberta courts assess it, and why it plays such an important role in estate litigation can help executors, beneficiaries, and families better understand their legal rights and responsibilities when questions arise about the validity of a will.

What Does Alberta Law Say?

In Alberta, testamentary capacity is a legal standard that determines whether a person has the mental ability to make a valid will. The law recognizes that adults are generally presumed to have the capacity to make their own decisions, including decisions about how their estate will be distributed after death. However, where a will is challenged, the court may examine whether the testator had the necessary mental capacity at the time the will was signed.

The key point is that testamentary capacity is assessed at the time the will is executed.

A person may experience periods of confusion or cognitive decline but still have sufficient capacity to make a valid will during a lucid interval. Conversely, a person who appears generally capable may lack testamentary capacity if they do not understand the nature and consequences of the decisions being made when the will is signed.

Generally speaking, a person making a will should be able to understand:

• that they are making a will;

• the purpose and legal effect of the document;

• the general nature and extent of their assets;

• the people who might reasonably expect to benefit from their estate; and

• how the will distributes their property upon death.

The person does not need to know the exact value of every asset or remember every detail of their financial affairs. Rather, they must have a reasonable understanding of the estate they own and the effect of the decisions they are making.

Dementia Does Not Automatically Mean a Person Lacks Capacity

One of the most common misconceptions is that a diagnosis of dementia or Alzheimer's disease automatically invalidates a will.

This is not the law.

Many individuals with dementia retain testamentary capacity during the early stages of the disease or experience lucid periods during which they fully understand the decisions they are making.

Likewise, a person without any diagnosed cognitive condition may still lack testamentary capacity if another illness, injury, medication, or mental health condition prevents them from meeting the legal test when the will is signed.

Evidence Considered by the Court

When testamentary capacity is challenged, the court may consider many different types of evidence, including:

• medical records;

• physician assessments;

• cognitive testing;

• the lawyer's notes from the will preparation meeting;

• testimony from the witnesses who observed the signing;

• evidence from family members or caregivers;

• previous wills;

• correspondence and financial records; and

• the circumstances surrounding the preparation and execution of the will.

Particular weight is often given to the observations of the lawyer who prepared the will, especially where the lawyer carefully assessed the client's understanding and kept detailed notes regarding their instructions and decision-making.

Capacity Is Different From Fairness

A person with testamentary capacity has the legal right to make decisions that others may view as unfair or unexpected.

For example, they may:

• leave unequal inheritances to their children;

• exclude certain family members;

• leave substantial gifts to friends or charities; or

• significantly change a previous will.

These decisions alone do not indicate a lack of capacity. The court focuses on whether the person understood the decisions, not whether others agree with them.

Because testamentary capacity is often central to will disputes, careful legal advice is important whenever concerns arise. Proper assessment, detailed documentation, and appropriate legal guidance during the estate planning process can significantly reduce the likelihood of future litigation and help ensure that a person's wishes are ultimately respected.

How the Process Works

Step 1: The Lawyer Meets With the Client

When preparing a will, one of the lawyer's first responsibilities is to assess whether the client appears to have testamentary capacity.

This assessment often begins during the initial meeting through normal conversation. The lawyer will generally seek to determine whether the client understands:

• why they are meeting with the lawyer;

• that they wish to prepare or change a will;

• who their family members are;

• the general nature of their assets; and

• how they want their estate distributed.

The lawyer is not conducting a medical examination. Instead, they are making legal observations about whether the client appears to understand the decisions they are making.

Step 2: Additional Questions May Be Asked

If the client is elderly, has a cognitive diagnosis, or significant changes are being made to an existing estate plan, the lawyer may ask more detailed questions to better assess capacity.

These questions may relate to:

• the client's family relationships;

• previous wills;

• the reasons for proposed changes;

• the nature of their assets;

• their understanding of who might reasonably expect to inherit; and

• whether anyone has influenced their decisions.

Detailed notes made during these discussions can become important evidence if the will is later challenged.

Step 3: Medical Evidence May Be Obtained Where Appropriate

In some situations, a lawyer may recommend obtaining a medical assessment before the will is signed.

This is particularly common where:

• the client has been diagnosed with dementia;

• there has been a significant decline in memory;

• family members have expressed concerns about capacity;

• the client resides in a care facility;

• the proposed will differs substantially from previous wills; or

• litigation is reasonably foreseeable.

Although a medical opinion is not legally required for every will, it can provide valuable evidence supporting the validity of the will if it is later challenged.

Step 4: The Will Is Signed

If the lawyer is satisfied that the client has testamentary capacity and the legal requirements for executing the will have been met, the will is signed.

The lawyer will often:

• confirm the client understands the contents of the will;

• review any significant changes;

• observe the client's behavior throughout the meeting;

• ensure the client is acting voluntarily; and

• make detailed notes regarding the execution process.

These records may become highly important if the will is later contested.

Step 5: Capacity May Be Reviewed After Death

Questions about testamentary capacity most commonly arise after the testator has died.

If someone challenges the will, the Court may review evidence such as:

• medical records;

• physician assessments;

• the drafting lawyer's file;

• witness testimony;

• previous wills;

• correspondence;

• financial records; and

• evidence from family members or caregivers.

The Court considers all of the evidence together to determine whether the testator possessed testamentary capacity at the time the will was executed.

Practical Examples

Example One: A Valid Will Despite Dementia

Margaret has been diagnosed with early-stage Alzheimer's disease but continues to live independently and manage her finances.

Before preparing her updated will, her lawyer carefully discusses her family, assets, and proposed distributions. Margaret clearly explains why she wishes to change her will and demonstrates that she understands the consequences of her decisions.

Although she later passes away with Alzheimer's disease, the evidence supports the conclusion that she had testamentary capacity when the will was signed.

Example Two: A Significant Estate Plan Change

Robert signs a new will only weeks before his death, leaving his entire estate to a recently hired caregiver instead of his children.

Because the change is substantial, the Court carefully reviews medical records, witness evidence, and the lawyer's notes to determine whether Robert had testamentary capacity and whether the new will truly reflected his intentions.

Example Three: A Challenge That Does Not Succeed

Susan's family believes she lacked capacity because she decided to leave unequal gifts to her children.

However, evidence from her lawyer, physician, and the witnesses who observed the signing demonstrates that Susan fully understood the nature of her estate, knew who her beneficiaries were, and deliberately chose the distribution set out in her will.

Although some family members disagree with her decisions, the Court concludes that Susan had testamentary capacity, and the will remains valid.

Common Mistakes

Assuming a Medical Diagnosis Automatically Means Incapacity

One of the most common misconceptions is that a diagnosis of dementia, Alzheimer's disease, or another cognitive condition automatically means a person cannot make a valid will.

This is not the case.

The legal question is whether the person had testamentary capacity when the will was signed. Many individuals with cognitive impairments retain the ability to understand the nature of making a will and the effect of their decisions, particularly during the earlier stages of an illness or during lucid periods.

Failing to Document the Decision-Making Process

Where there is any possibility that capacity may later be questioned, thorough documentation is extremely important.

Lawyers often protect both their clients and the validity of the will by maintaining detailed notes regarding:

• the client's instructions;

• discussions about family members;

• explanations of the client's assets;

• the reasons for significant changes to previous wills;

• observations about the client's understanding; and

• any concerns raised or addressed during the meeting.

Well-documented files can become valuable evidence if the will is later challenged.

Waiting Too Long to Update a Will

Many people delay updating their wills after receiving a diagnosis that may eventually affect their cognitive abilities.

If a person clearly has testamentary capacity today but postpones making necessary changes for several years, questions about capacity may become more difficult to resolve later.

Reviewing and updating an estate plan while capacity is clearly established can help reduce the risk of future disputes.

Confusing Capacity With Undue Influence

Testamentary capacity and undue influence are separate legal concepts.

A person may have full mental capacity but still be subjected to improper pressure from another individual.

Likewise, a person may lack testamentary capacity even if nobody attempted to influence them.

Because these issues often arise together in estate litigation, it is important to carefully distinguish between them when assessing the validity of a will.

Challenging a Will Without Supporting Evidence

Family members sometimes assume that unusual decisions or unequal inheritances prove the deceased lacked testamentary capacity.

However, Alberta courts require evidence, not speculation.

Medical records, lawyer's notes, witness testimony, and other objective evidence generally carry far more weight than personal opinions about what the deceased "would have wanted."

Costs and Considerations

Questions about testamentary capacity often arise in the context of estate litigation, and resolving those questions can involve significant time and expense.

Potential costs may include:

• legal fees;

• medical record requests;

• physician or specialist reports;

• expert witness fees;

• court filing fees;

• mediation costs; and

• other litigation expenses where a will is formally challenged.

The complexity of the case will often depend on factors such as:

• the deceased's medical history;

• the availability of contemporaneous medical evidence;

• the quality of the lawyer's file;

• the number of witnesses involved;

• whether multiple wills exist; and

• whether the matter proceeds to trial.

For individuals preparing a will, obtaining legal advice and, where appropriate, a medical assessment can often reduce the likelihood of future disputes. Although these steps may involve some additional expense during the estate planning process, they can provide valuable evidence supporting the validity of the will if its legitimacy is later questioned.

When Should You Speak With an Estate Lawyer?

Professional legal advice may be particularly valuable if:

• you are concerned about your own capacity to make or update a will;

• a loved one has recently been diagnosed with dementia or another cognitive condition;

• significant changes are being made to an existing estate plan;

• you believe a deceased person lacked testamentary capacity when signing a will;

• you are an executor responding to a capacity challenge;

• there are allegations of undue influence alongside concerns about capacity; or

• you are considering contesting the validity of a will.

An experienced estate lawyer can explain the legal test for testamentary capacity, advise on the evidence required, and help protect your interests whether you are preparing a will or involved in an estate dispute.

How Bridgestone Law Can Help

Testamentary capacity is one of the most important legal requirements for a valid will and one of the most frequently disputed issues in estate litigation. Whether you are preparing a new will, updating an existing estate plan, or questioning the validity of a loved one's will, understanding the legal test for capacity is essential. Early legal advice and careful documentation can often prevent future disputes and help ensure a person's true wishes are respected.

Bridgestone Law assists individuals, executors, and families throughout Calgary and Alberta with estate planning, will preparation, probate, estate administration, and estate litigation. Whether you need advice about testamentary capacity, concerns regarding undue influence, or representation in a will dispute, our experienced estate lawyers can provide practical guidance tailored to your circumstances.