In Becker v. Becker, the Supreme Court of British Columbia considered whether a testator who had been hospitalized with an inoperable brain tumour had the requisite testamentary capacity to execute new Wills and whether suspicious circumstances were present that rebutted any presumption of capacity.

The test for testamentary capacity, set out in the leading English case Banks v. Goodfellow (1870), provides that the testator must (i) understand the nature and effect of the Will; (ii) understand the extent of his property; (iii) understand and appreciate the claims of those around him to which he ought to give effect; and (iv) be of sound mind.

Suspicious circumstances can rebut the presumption of capacity, as set out in the Supreme Court of Canada case Vout v. Hay. Testamentary capacity must then be proved on a balance of probabilities.


Ann Andrews died on February 10, 2012 at the age of 73 after having been hospitalized with an inoperable brain tumour. While in hospital, she made a new Will and then replaced it with another Will five days later (the “new Wills”).

Ms. Andrews’ godchildren, who live in England and Spain (the “Godchildren”), challenged the validity of the new Wills. The grandchildren of Hendrik Becker (“Hendrik”), Ms. Andrews’ common-law spouse of 27 years (the “Becker Grandchildren”), argued Ms. Andrews’ new Wills are valid.

Ms. Andrews’ new Wills updated the appointment of her executor from a long-time friend to Hendrik and Hendrik’s son as alternate executor and changed the division of the residue of her estate from the Godchildren alone to both the Godchildren and the Becker Grandchildren.

Preparation of the New Wills

On January 10, 2012, a lawyer attended upon Ms. Andrews in the hospital to receive instructions to draw up a new Will. The lawyer brought a copy of Ms. Andrews’ 2009 Will to reference during the meeting and spoke to Ms. Andrews for roughly two hours. Hendrik was present for about two-thirds of the time. The evidence was that Ms. Andrews was very emotional and was inconsistent with her memories and sometimes forgetful and confused. It was not clear how much Ms. Andrews understood of her property and she had to be prompted by Hendrik and the lawyer rather than responding to open-ended questions. Ms. Andrews had difficulty remembering the names of the Godchildren, but was able to remember the names of the Becker Grandchildren.

Three days later, the lawyer and two legal assistants from her office attended at the hospital for execution of the Will. The lawyer’s evidence was that Ms. Andrews appeared “brighter and more cognitively aware” and less emotional. The lawyer said that Ms. Andrews was clear on the terms of the Will and approved them. There was no indication that Ms. Andrews did not understand what she was doing at the time.

Hendrik contacted the lawyer on January 16, 2012 and advised that his grandchildren were to be added as residuary beneficiaries under Ms. Andrews’ Will. The lawyer was aware that she was required to receive these instructions directly from Ms. Andrews; however, she considered it reasonable that Ms. Andrews would want the Becker Grandchildren included in her Will.

On January 17, 2012, the lawyer met with Ms. Andrews to confirm her instructions. Ms. Andrews told the lawyer that she had seen the Becker Grandchildren grow up and would feel uncomfortable if they were left out. The second new Will was drawn up by the lawyer incorporating this change and was signed the next day.

The Court’s Analysis

The Court relied on Vout v. Hay, confirming that there is a presumption of capacity where a Will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. This presumption may be rebutted by evidence of suspicious circumstances, in which case testamentary capacity must be proved on the balance of probabilities.

The suspicious circumstances alleged by the Godchildren included:

  • A change in a long-standing estate plan to the benefit of Hendrik and his family;
  • The involvement of Hendrik in retaining and providing instructions to the lawyer; and
  • Ms. Andrews’ “vulnerability” arising from the terminal diagnosis she received.

The Court determined that the new Wills did not include significant changes signalling suspicious circumstances, nor was it suspicious for Ms. Andrews to change her Will after receiving a terminal diagnosis.

The Court agreed that Ms. Andrews’ apparent confusion and faulty memory on January 10, 2012, coupled with her ongoing physical deterioration, do amount to a suspicious circumstance rebutting the presumption of capacity. However, the Court accepted the lawyer’s evidence, supported by that of Ms. Andrews’ physician, that Ms. Andrews was brighter, clearer, less emotional and could converse easily during the lawyer’s subsequent three attendances.

The Court noted that the emotional state of a person who has recently been told that death is imminent should not be confused with the question of mental capacity.

Hendrik’s involvement with contacting the lawyer and providing instructions was concerning, but the Court pointed out that he was not present when the January 13, 2012 Will was executed, when Ms. Andrews subsequently confirmed her wishes to make further changes to include the Becker Grandchildren or when the January 18, 2012 Will was executed.

Although it was likely that the change to Ms. Andrews’ Will to include the Becker Grandchildren was suggested or prompted by Hendrik, the lawyer was aware of this issue and determined it to be a change that Ms. Andrews wanted to make. The lawyer made the determination in Hendrik’s absence. “Nothing in the case law prevents suggestions or persuasion by a spouse, provided that there is no coercion and the testator remains free to make his or her own decision” (at para. 70).


The lawyer met with Ms. Andrews on four separate occasions over the span of eight days and judged her capacity each time. The Court concluded that on the balance of probabilities, Ms. Andrews had the requisite testamentary capacity to execute both new Wills and no evidence of undue influence was found.

The test set out in Banks for testamentary capacity does not require perfection, but simply the ability to turn one’s mind to those elements in a general way.

If you require advice or assistance with respect to any estate matters, the team at Miller Thomson would be pleased to assist. Although sometimes inevitable, the best way to avoid estate litigation is to have proper estate documents drawn up and signed. Do not wait until a Will becomes urgent; planning for the future while you are still in good health is the best practice.