Incapacity to Consent to a Will

The capacity of the deceased and the captation of the deceased are recourses frequently brought before the courts when an interested person wishes to contest a will.

In a recent decision, the Quebec Superior Court reiterated the criteria applicable to actions involving the testamentary capacity of the deceased, as well as those applicable to capture.


Basis of the right to a will

Article 703 of the Civil Code of Quebec is the cornerstone of every person’s right to settle his or her succession by will:

703. Any person with the requisite capacity may, by will, regulate the devolution of all or part of his or her property on death in a manner different from that provided by law.

However, appeals invoking the capacity to test, or even the capacity to have informed consent, are mainly based on the factual theory that the deceased did not have the “required capacity” when he settled his estate by will.

Burden of proof and criteria for incapacity to test

As Judge Riordan pointed out in the Miserany v. Fournier (2018 QCCS 5776), the law establishes a presumption in favor of the deceased’s capacity, but the mere appearance of incapacity is sufficient to satisfy this burden of proof. Thus, when an interested person demonstrates the appearance of the deceased’s incapacity when he signed his will, it will be up to the defendants to show, by a preponderance of evidence, that the deceased was capable at the time he signed his will.

Judge Riodan had this to say on the subject:

[13] On this last point, there is a presumption in favor of the testator’s capacity. Consequently, the person alleging incapacity has the burden of proof – initially. That said, it is relatively easy to reverse the burden in this area. In fact, to shift this burden onto the opposing party, all that is required is prima facie evidence of a serious doubt as to the testator’s capacity.

[14] Thus, if Joyce succeeds in making a prima facie case of Madeleine’s unfitness, i.e., apparent proof, regardless of possible evidence to the contrary, the burden will shift to the defendants. It’s important to note that any doubt in this regard must be serious in order to carry out such a transfer.

[15] A word about the degree of disability. It is not necessary to show that the testator was deprived of all cognitive means at the time of making the will.

In summary, it appears that the current trend in jurisprudence favours plaintiffs seeking to annul a will on the grounds that the deceased lacked the capacity required to test. In fact, a mere appearance of incapacity is not required for the Plaintiffs, whereas the Defendants must convince the court, by a preponderance of evidence, that the deceased was competent at the time the will was signed.