Becker v. Becker: Testamentary Capacity

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.