In our estate litigation practice we frequently hear from clients who are deeply concerned about a will made when a parent or loved one was experiencing cognitive decline. This was the situation in the recent decision of Lavictoire v. Schwartz, 2025 BCSC 2565, where the Supreme Court of British Columbia was asked to determine whether a will executed shortly after a diagnosis of moderate to severe dementia could be upheld. The Court concluded it could not.

When cognitive decline intersects with late-life testamentary change, courts are rightly cautious. As the Court observed in Lavictoire, testamentary capacity is a “thorny issue”—particularly where a will represents a sharp departure from a prior estate plan and is made in the shadow of declining cognition.

Background

The deceased executed a new will only weeks after her granddaughter commenced a committeeship petition seeking control of the deceased’s person and estate. That petition followed closely on the heels of specialist medical assessments diagnosing the deceased with moderate to severe dementia.

The deceased had two sons, both of whom predeceased her. One son left two daughters—the plaintiff and her sister—who were the deceased’s only grandchildren. The deceased also had a sister, two nieces, and a nephew.

Under a prior will, the estate was left to the deceased’s two sons, without a gift-over. On that footing, the estate would pass on intestacy to the two granddaughters in equal shares. The new will, executed after the dementia diagnosis, significantly altered that result. It divided the residue equally among six family members and included a gift-over clause among the residual beneficiaries. By the time of the deceased’s death, the practical effect was that four beneficiaries—including the plaintiff—would receive an equal share.

Medical Evidence and the Committeeship Proceeding

In the months leading up to the execution of the impugned will, the deceased experienced marked cognitive decline. She was hospitalized on multiple occasions and assessed by both a geriatric specialist and a psychiatrist. Each observed that she lacked meaningful understanding of her personal care needs and financial affairs.

Both physicians later swore affidavits in the committeeship proceeding. One diagnosed moderate to severe dementia due to Alzheimer’s disease or Lewy Body Dementia; the other diagnosed Lewy Body Dementia. Both found that the deceased was unable to answer basic questions concerning her finances.

The Will-Making Process

Shortly after service of the committeeship materials, one of the deceased’s nieces—later a beneficiary under the new will—contacted counsel to arrange for the preparation of a will.

The drafting solicitor, who was also named as executor, met with the deceased and the niece. The niece acted as a Polish interpreter and assisted with instructions. The solicitor was aware of the committeeship proceeding and that capacity was potentially in issue.

The solicitor completed a “master checklist” during the meeting and recorded conclusions under a heading titled “Testamentary Capacity Assessment.” However, he kept no notes of the questions asked or answers given that led him to believe the deceased had capacity, had no meaningful record of her assets or their value, and had no clear understanding of the terms of the prior will or the implications of the changes being made. Cross-examination left unclear whether dispositive instructions originated from the deceased or the niece.

A Polish-speaking colleague later reviewed the will with the deceased, reading it aloud paragraph by paragraph. The deceased indicated agreement or nodded but asked no questions. The colleague testified that he was satisfied the deceased understood the will.

The Law on Testamentary Capacity

The Court reaffirmed the classic test from Banks v. Goodfellow (1870). Testamentary capacity requires that a will-maker understand:
1. the nature and effect of making a will;
2. the extent of the property being disposed of;
3. the claims of those who might reasonably expect to benefit; and
4. that no disorder of the mind influences the dispositions.

Capacity is a legal, not medical, determination. A diagnosis of dementia—or even the existence of a committeeship—is not dispositive. That said, cognitive impairment sufficient to ground a committeeship demands careful and exacting scrutiny of the evidence.

Suspicious Circumstances and the Burden of Proof

At common law, a will that is duly executed with the required formalities (after a testator has read and appears to understand the terms of the will) gives rise to a rebuttable presumption of knowledge, approval, and testamentary capacity. That presumption, however, falls away where suspicious circumstances are present, shifting the burden of proof to the propounder to prove the will’s validity.

There is no closed list of suspicious circumstances, but beneficiary involvement in the preparation of a will is a familiar and powerful example.

Here, the Court identified several circumstances, including:
– a beneficiary’s instrumental role in arranging the will;
– recent medical diagnoses of moderate to severe dementia;
– medical evidence that the deceased could not answer basic financial questions shortly before the will was made; and
– a marked departure from the prior testamentary scheme.

Taken together, these circumstances displaced the presumption and placed the burden squarely on the propounder.

Failure to Establish Testamentary Capacity

The propounder did not meet that burden. There was no persuasive evidence that the solicitor asked questions capable of eliciting the deceased’s understanding of the nature and effect of the will, the extent of her assets, or the consequences of altering her prior estate plan.

The checklist the solicitor used did not track the Banks v. Goodfellow criteria. The evidence suggested reliance on closed, confirmatory questions. As the Court emphasized, the ability to give rational answers is not enough. A will-maker must be able to hold the essential elements of the testamentary act “in some degree of appreciation as a whole.”

Nor did the mere reading aloud of the will, without probing comprehension, assist in establishing testamentary capacity.

Conclusion

The Court declared the will invalid, concluding that testamentary capacity had not been proven by the propounder on a balance of probabilities.

Key Takeaways

– A diagnosis of dementia does not automatically negate testamentary capacity, but it may rise to the level of a suspicious circumstance.
– Wills made in the shadow of a committeeship application will attract close scrutiny. Drafting solicitors bear heavy responsibility in contexts where a testator is suffering from cognitive decline and should ask—and carefully record—open-ended questions that map onto Banks v. Goodfellow criteria; checklists and yes-or-no answers may not suffice.
– Beneficiary involvement in the will-making process remains one of the most potent suspicious circumstances in estate litigation