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Testamentary Capacity New Developments From The Supreme Court

September 2019

The Supreme Court has recently considered the issues of testamentary capacity, and the role of the lawyer, when a lawyer drafts a Will for their client.

In a particular case that went all the way to the Supreme Court a son, disgruntled with what he had been left in his mother’s Will, made claims that his mother was not mentally capable when she signed her Will.  The son complained about the role of the lawyer and alleged that the lawyer should not have drafted the Will for his mother, or let her execute it.  The son ultimately failed in his claim, but the Court reiterated important points for clients and lawyers when Wills are being prepared.


In summary, the Supreme Court held that where the instructions are to prepare a Will if there might later be issues raised about capacity:

  • the lawyer should carefully document the advice given and the steps taken.
  • It may be prudent for the lawyer to suggest a medical certificate be obtained.
  • The lawyer should document the reasons for the Will and the process involved in taking instructions to ensure that the instructions have been correctly understood.

The Court found that once the steps set out above have been taken it would not be up to the lawyer, who is not a medical expert, to decide whether a client has testamentary capacity and thus to decide whether to follow his or her instructions.


The Court’s decision acknowledges the reality that lawyers have no medical training and are not qualified to assess the presence or absence of testamentary capacity.


Here, the Court held that based on the contemporary documentation, the son could not prove that the Lawyers knew that his mother lacked testamentary capacity when she instructed them to make the Will as she did.  In this case the lawyer made contemporaneous notes and obtained a doctor’s certificate as to testamentary capacity, which carried considerable weight with the Court.


This case reiterates why we have to be careful when taking your Will instructions and implementing your wishes.  A disgruntled family member can make allegations about your testamentary capacity and try to have your Will set aside for an earlier one that may be in their favour.  Although we can never say that Wills will not be challenged, your Will stands a much better chance of being upheld, if it is challenged, if a thorough investigation as to your capacity, your intentions and your wishes is undertaken at the time of making your will.