Lucid Intervals: Temporarily Regaining Testamentary Capacity

In order to write a valid will in BC, the writer must be able to understand and accept their will. This is called the testamentary capacity to make a will. Often, a will-writer loses testamentary capacity after suffering an injury or illness. Once the will-writer loses testamentary capacity, many assume that they never regain the capacity to make a will. This isn’t always the case. An incapable person can experience lucid intervals where they regain testamentary capacity for a period of time.

More specifically, according to the judgement in Banks v. Goodfellow (1870), for a will-writer to have testamentary capacity they must be:

1. Capable of understanding the act of making a will and its effects;
2. Capable of understanding the nature and extent of their property relevant to the disposition;
3. Capable of evaluating the claims of those who might be expected to benefit from [his/her] estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;
4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and,
5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

Will-writers must be able to understand the nature of their estate, the distributions they’re making in their will and the overall impact their will is going to have.

Lucid Intervals

A lucid interval is a period of time where someone without testamentary capacity regains capacity. Depending on the mental state and health condition of the testator, this can be as short as a few moments. For people who suffer from a condition such as Alzheimer’s disease, they may have lucid intervals lasting an entire day or more.

To demonstrate testamentary capacity with a lucid interval to legally change their will, an applicant won’t have to prove the illness was cured. They must only prove that the will-writer had testamentary capacity in the moment the will was made.

Lucid Intervals Confirmed by the Courts

Lucid intervals were at issue in the Alberta case of Zukas Estate (Re) (2016). The will writer’s testamentary capacity was questioned as he was in hospice when his will was executed. The deceased was reportedly on medications that could have affected his testamentary capacity when he wrote the will. The drafting lawyer had performed tests on the writer to ensure that he had capacity to make a valid will. About 2 weeks after the will was drafted, a codicil was made to fix an error in the will. The lawyer identified that the will-writer did not have the testamentary capacity at the time of the codicil being executed. Was this enough evidence to conclude that the will-writer didn’t have the testamentary capacity when the will was executed?

The Court found that this wasn’t evidence of whether or not the deceased had testamentary capacity while executing the will. As stated by the judge, “all that is required of a testator is a lucid interval. The Respondents have failed to identify any evidence that overwhelms [the lawyer’s] assessment that the Deceased, at the time of giving instructions and on the date of execution, had testamentary capacity.” The time before or after a will’s execution doesn’t necessarily speak to the testator’s capacity when they wrote the will.

Mental Illnesses

In Re Weidenberger (Estate) (2002), the will-writer was diagnosed with a mental illness prior to writing the will. The courts identified that the will-writer must have the testamentary capacity “at the time the will was created.” The judge further mentions that, “what the Deceased’s state of mind was one year before or one year after the date of the document is not overly relevant.”

In the end, it was determined that the will-writer had the testamentary capacity to execute their will. The mental illness, while restricting the deceased’s ability to understand the value of the estate, did not restrict their ability to understand the terms.

Reminders for Will Writers

The mere fact that a testator doesn’t have the testamentary capacity before or after executing a will is not sufficient evidence to prove a case for a lack of testamentary capacity because of lucid intervals. If you’re unclear of the impact of a lucid interval in regards to will writing, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.