Consideration of Testamentary Capacity in the British Columbia Succession Law Reform Project

This short paper by Gregory G. Blue describes an interdisciplinary debate on possible reform and statutory codification of the classic principles surrounding testamentary capacity as enunciated in Banks v Goodfellow.  The debate in question took place in the course of the British Columbia Law Institute’s Succession Law Reform Project, an initiative supported by the Attorney General of British Columbia.  It involved legal and medical practitioners as well as academic researches.  The debate resulted in a cautious reaffirmation of the Banks v. Goodfellow tests, but with a consensus that better communication and refinement of assessment techniques by both lawyers and clinicians is necessary, and a call for continuing dialogue on this subject between the disciplines.

An emergent theme in the debate was the inadequacy of the conventional tests of testamentary capacity for separating the issue of whether mental capacity is present from that of whether independent will-making is acutally possible in the testator’s circumstances. An “index of suspicion” that would be better enable profesionals to determine when the testator’s independence is being overborne even though capacity may be present was identified as a particularly useful potential product of an interdisciplinary rapporchement in this area.

The full article can be found in Volume 1, Issue 1 of the Canadian Journal of Elder Law.

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