When you choose to prepare estate planning documents such as a will and powers of attorney for property and personal care, it is a pre-condition for signing those documents that you have the capacity to sign them. “Capacity” means the ability to fully understand what you are signing and the effect of what you are signing.
For example, when preparing a will, you must be able to understand the nature of the assets that you own and their approximate value. In addition, of course, you must be able to understand the relationships around you – of family and friends – in order to be able to appreciate who the people are around you that you plan to leave the assets to, as well as the family/friends who you plan to leave out of your will. You must also be able to understand the effect of signing a will and what it means for your estate and those around you who are/aren’t in your will.
These days, there has been an explosion of litigation around the issue of capacity – disappointed beneficiaries, not happy that they have been left out of your will, have been challenging the will on the basis of lack of capacity of the will-maker. So how do you counter the risk of having your will be challenged in this manner? Well, a number of years ago, the Province of Ontario created a licensing process for a “Capacity Assessor,” a qualified professional, most often a psychologist, who has received specialized training in assessing capacity. It is often that we are presented with a client whose capacity may be in question due to age or other factors, or whose will we are concerned may later be challenged, that we will recommend that the will-maker retain a licensed capacity assessor to assess his/her capacity at the time that the will instructions are given to us. This is a sure-fire way of reducing the risk of a will being challenged on the basis of lack of capacity.
A capacity assessor can also assist in determining whether a will-maker’s instructions are really his/her instructions, or whether he/she is under the ‘undue influence’ of someone who has convinced the will-maker to write his/her will in a particular way.
So, when it comes time for you to prepare your will (or look at possible changes), consider the benefits that a Licensed Capacity Assessor might add to the strength of your estate plan.
This blog post was written by Ted Mann, a Partner in the Wills and Estates, Real Estate, Business and Bankruptcy teams. He can be reached at 613-369-0368 or at [email protected].
