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What is testamentary capacity in estate litigation?

When a will is called into question, one of the common complaints is that the person who drafted it did not have the capacity to do so. This is referred to as "testamentary capacity" under British Columbia law. Often, in estate litigation, this will be brought up by a person who believes that the will should be regarded as invalid because the testator who drafted it was not of sound mind.

Typically, any will that is signed off on by a lawyer will be considered valid under the law. This is because lawyers are responsible for assessing a testator's capacity prior to validating their estate plans. In some cases, a lawyer will require the help of a medical professional to make that choice.

Lawyers should meet with clients alone in order to gauge their true feelings about estate plans. If the plans are not made independently by someone of sound mind, they can be called into question after the fact. However, it is important to note that someone with Alzheimer's or dementia may still have the decisional capacity to draft a will, so these diagnoses do not in and of itself mean that a testamentary capacity challenge will hold up in court.

While a lawyer is often the first party charged with judging capacity, a judge may also need to make this decision should the will face estate litigation. One of the challenges in these cases is that capacity is often being judged post-mortem, so typically, wills that had a lawyer involved in their creation will typically not be seen as invalid under this law. Those who are either defending or questioning a British Columbia will should speak with a lawyer who specializes in estate litigation.

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