Testamentary Capacity in Ontario: The Banks v Goodfellow Test
Testamentary capacity in Ontario is measured by a four-part test from Banks v. Goodfellow (1870), LR 5 QB 549, an English decision Canadian courts have applied for more than a century and a half. The testator must understand the nature of the act of making a will and its effects, understand the extent of the property being disposed of, be able to comprehend and appreciate the claims of the people who might expect to benefit, and be free of any disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties. All four limbs must be satisfied, and capacity is assessed at the moment the will was made rather than generally. A diagnosis is not the test. This article explains each limb, why dementia does not decide the question, how the burden of proof operates, and what evidence courts actually weigh.
What Are the Four Limbs of the Test?
| Limb | What the testator must be able to do |
|---|---|
| Nature of the act | Understand that they are making a will and that it will determine what happens to their property after death |
| Extent of the property | Understand in a general way what they own and roughly what it is worth |
| Claims of others | Comprehend and appreciate the claims of the people who might reasonably expect to benefit, and decide about them |
| Freedom from disorder | Be free of any disorder of the mind or delusion that poisons their affections, perverts their sense of right, or brings about a disposition that would not otherwise have been made |
Understanding the extent of the property does not require an inventory. The testator needs a general grasp of what they own, not the ability to recite account balances.
The third limb is doing the most work in practice. It requires the testator to be able to bring to mind the people with a claim on their bounty, generally a spouse and children, and to weigh those claims. It does not require the testator to act on them. A testator who understands that a child exists, understands that the child might expect something, and deliberately decides to leave them nothing, has capacity. Disinheritance is not evidence of incapacity.
The fourth limb is about delusions with a connection to the will. Banks v. Goodfellow itself involved a testator with serious delusions, including a belief that he was being pursued by evil spirits, who nonetheless made a valid will because the delusions did not touch the disposition. Unsoundness of mind does not defeat capacity where it does not affect the will itself.
Capacity is specific to the will and the testator. A simple will leaving everything to one person calls for less understanding than a complex will with multiple trusts, a business, and competing family branches.
Does a Dementia Diagnosis Mean the Will Is Invalid?
No. Testamentary capacity is a legal concept rather than a medical one, and a diagnosis of dementia is not equivalent to a finding of testamentary incapacity. Many people with early or moderate cognitive impairment satisfy the Banks v. Goodfellow limbs.
Capacity fluctuates, and the relevant moment is narrow. In an older adult, capacity often declines over time, but it is not static in any given case. There can be periods of incapacity interspersed with periods of lucidity. The question is not what the testator was like that year. It is what they were able to understand when the will was signed.
Appearances deceive in both directions. A person who presents as rational may lack capacity, and a person who presents as compromised may be perfectly capable of making a will.
Cognitive screening tools are evidence, not answers. Courts have observed that a widely used bedside screening test is a blunt instrument with a limited ability to detect frontal lobe dysfunction or deficits in executive function, both of which are common in Alzheimer's disease. A score does not decide capacity.
The practical consequence for families is the opposite of what they expect. A diagnosis in the file is a reason to look closely at the will-making. It is not, by itself, a ground of challenge.
Who Has to Prove Capacity?
The person putting the will forward carries the legal burden. Under Vout v. Hay, [1995] 2 S.C.R. 876, the propounder of a will must prove due execution, testamentary capacity, and the testator's knowledge and approval of the contents.
A presumption assists them. Where the will was duly executed with the required formalities, after being read over to a testator who appeared to understand it, capacity and knowledge and approval are presumed.
Suspicious circumstances displace the presumption. A challenger who points to evidence which, if accepted, would tend to negative capacity or knowledge and approval discharges an evidentiary burden, and the legal burden reverts to the propounder. Suspicious circumstances can arise from the circumstances surrounding the preparation of the will, from circumstances calling the testator's capacity into question, or from circumstances suggesting the testator's free will was overborne.
The standard stays civil. Suspicious circumstances do not raise the standard above the balance of probabilities, although the extent of proof required is proportionate to the gravity of the suspicion.
Capacity and undue influence are separate grounds with opposite burdens. Where the allegation is coercion rather than incomprehension, the burden sits on the challenger throughout and no presumption assists them. The two are often pleaded together and should not be confused.
What Evidence Do Courts Actually Weigh?
The drafting lawyer's file. Attendance notes, who was present, who gave the instructions, whether the lawyer met the testator alone, what the testator said in their own words, and whether the lawyer turned their mind to capacity. This is generally the most valuable single source.
Medical records close in time to execution. Physician notes, hospital charts, geriatric and memory clinic assessments. Weight rises sharply with proximity to the signing date.
Contemporaneous capacity assessments, where one was obtained at the time. A formal assessment at execution is the strongest protection available to a testator who anticipates a challenge.
Evidence from the witnesses to the will, and anyone else present.
Lay evidence from people who dealt with the testator around the relevant period, including bank staff, caregivers, neighbours and friends.
The will itself, and what it changed. A disposition that reverses a long-settled plan invites scrutiny; a disposition consistent with what the testator said for years does not.
Retrospective expert opinion is common and is not conclusive. An expert who never met the testator is reasoning from records. Courts weigh that against the evidence of people who were actually in the room.
Where the drafter takes a benefit, suspicion is engaged. A long-standing principle holds that where a person who prepares a will takes a benefit under it, that circumstance ought generally to excite the suspicion of the court.
Where This Goes Wrong
Treating a diagnosis as the case. Producing medical records showing dementia and stopping there. The records establish impairment. They do not establish that the testator failed a limb of the test at the moment of signing.
Challenging because the will is unfair. Courts do not test wills for fairness. A capable testator is entitled to make a decision others find unreasonable.
Ignoring the drafting lawyer's file. It is frequently the difference between a viable challenge and an unviable one, and it can be requested early.
Waiting. Files are destroyed after retention periods, witnesses move and forget, and medical records become harder to obtain.
Confusing capacity with undue influence. Different tests, different burdens, and a challenge framed under the wrong one starts from a weaker position.
Assuming a lucid interval cannot be proved. It can. Equally, a testator who was capable a month earlier is not automatically capable on the signing date.
Overlooking what happens if the challenge succeeds. Setting aside a will may leave an earlier valid and operative will to govern. It does not automatically revive a will that was already validly revoked. If no valid operative will remains, the estate passes on an intestacy. Our guide to what happens when someone dies without a will in Ontario sets out that distribution, and it does not always favour the challenger.
Whether a capacity challenge is worth bringing turns on evidence that is available now and degrades with time. An early assessment of the drafting file and the medical records generally answers the question before significant cost is incurred. You can book a free call, and our overview of estate disputes in Ontario covers the related claims.
Frequently Asked Questions
What is the Banks v Goodfellow test?
It is the common law test for testamentary capacity. The testator must understand the nature of making a will and its effects, understand the extent of their property, be able to comprehend and appreciate the claims of those who might expect to benefit, and be free of any disorder of the mind that distorts the disposition. All four must be satisfied.
Can someone with dementia make a valid will in Ontario?
Yes, depending on their condition at the time. A diagnosis of dementia is not the same as testamentary incapacity. Capacity is a legal question assessed at the moment the will was made, and many people with early or moderate cognitive impairment meet the test.
When is testamentary capacity assessed?
At the time the will was made. Evidence about the testator's condition before and after that date is relevant to what their state was likely to have been, but the operative moment is the execution of the will.
Who has to prove the testator had capacity?
The person propounding the will. A presumption assists them where the will was duly executed and read over to a testator who appeared to understand it. A challenger who raises suspicious circumstances displaces that presumption, and the legal burden reverts to the propounder.
Is a doctor's note enough to prove capacity?
It is useful evidence and not determinative. Courts assess capacity as a legal question on the whole record, including the drafting lawyer's notes, the witnesses, and lay evidence about how the testator was functioning. Cognitive screening scores are treated as one input rather than as an answer.
Does leaving a child out of a will suggest incapacity?
No. The test requires the testator to be able to comprehend and appreciate the claims of people who might expect to benefit. It does not require them to give effect to those claims. A capable testator may deliberately disinherit.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.
