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WILLS - Testamentary capacity - Legal capacity - Knowledge and approval

Monday, January 27, 2020 @ 8:55 AM  


Lexis Advance® Quicklaw®
Action by the Public Trustee for a declaration that the deceased’s 2012 Will modified by the 2013 Codicil was a valid Will. The deceased died in 2013 at age 93. His wife predeceased him. The defendant was his only child. The defendant resided with his parents at their home his entire life. The home was the principal asset of the estate. In 2007, the parents prepared mirror-image wills transferring their assets to the survivor of the two of them. Each of these wills provided for the survivor's estate to be transferred to the defendant as their only heir. In 2010, the deceased became concerned about his safety at home when the defendant continued to pressure him to add his name on title to the home. He was admitted to hospital for assessment. It was then determined that the deceased was no longer able to look after his financial affairs. The public trustee was appointed as the deceased’s committee. In 2012, the deceased met with his lawyer to prepare a new will including a provision giving the Trustee broad discretion and power to deal with the Family Home as he saw fit. The house was then valued at just over $1 million. The lawyer was satisfied that the deceased had testamentary capacity. The lawyer subsequently obtained instructions for the 2013 Codicil to be prepared, increasing the testamentary gift to the Church from $5,000 in the 2012 Will to $100,000, leaving $1 million in trust for the defendant. The deceased died four days later.

HELD: Action allowed. The deceased had the requisite testamentary capacity to validly make the 2012 Will and 2013 Codicil. The evidence of the lawyer regarding the deceased’s mental acuity at the time he provided instructions to him for them both and at the time he signed them demonstrated the deceased had testamentary capacity to give instructions for, and to make and sign the 2012 Will and the 2013 Codicil. The defendant’s suggestion that the deceased was manipulated by the Church to give it $100,000 on his death and to benefit it with the balance of his estate on the defendant’s passing was without merit. There were no suspicious circumstances when the 2012 Will and the 2013 Codicil were signed. The deceased knew and approved of their contents. He had the required baseline level of mental acuity or a disposing mind and memory, sufficient to appreciate and comprehend the nature and effect of the essential elements of instruction for the preparation and signing of the 2012 Will and the 2013 Codicil. The Trustee’s office was fully informed about and participated in the deceased’s decision to instruct the lawyer respecting the 2012 Will and the 2013 Codicil. The Pastor was not involved in the preparation of the 2012 Will. His only involvement in the 2013 Codicil was to reach out to the lawyer on the deceased’s behalf to initiate the process. Although he was present during the meetings with the deceased and his lawyer, he was in the background only. The deceased’s instructions and execution of the 2012 Will and 2013 Codicil were free from delusions and undue influence.

Johnston Estate (British Columbia (Public Guardian and Trustee of)) v. Johnston, [2019] B.C.J. No. 2405, British Columbia Supreme Court, G.P. Weatherill J., December 11, 2019. Digest No. TLD-January272020001