A decision has just been released by the courts in Alberta confirming what wills and estate lawyers have always known but rarely say out loud: powers of memory are absolutely essential before a will-maker can be said to have testamentary capacity.
Re Arena Estate, 2020 CarswellAlta 628, 2020 ABQB 206 (Alta. Q.B.) was just released. The court stated at para. 87: “Understanding and memory go together. It is important to ensure that the testator can comprehend and recollect what property is possessed, the extent of what is being given to each beneficiary and the nature of the claims of others who are being excluded.” The court recognized the difference between short-term memory and long-term memory, and correctly focused on long-term memory as the critical ingredient.
That echoes an earlier statement of the Alberta Court of Queen’s Bench found in Wasylynuk v. Bouma, 2018 CarswellAlta 384, 2018 ABQB 159, 70 Alta. L.R. (6th) 288 (Alta. Q.B.), at para. 127: “Memory is a critical requirement underpinning testamentary capacity.”
The recent Alberta refocus on memory is good law not just in Alberta but across Canada. There is nothing new here. The importance of memory to testamentary capacity was a popular concept a century and a half ago when the modern common law on testamentary capacity was in its infancy.
That phrase can be traced back to the Scotland in 1833 in the following passage by Lord Cringletie in a charge to the jury found in Simpson v. Gardners Trustees (1833), 11 Ct of Sess Cas 1049, at pp. 1051-52 (Scottish Court of Session):
…the grand criterion by which to judge whether [the mind is] … injured or destroyed, is to ascertain the state of the memory. It is memory that affords us all the materials on which to exercise judgment, and to arrive at a conclusion or resolution. Without memory the mind cannot act, and it is the first of the intellectual faculties which fails, where the mind is in a state of decay.
That passage was later repeated in Canada with authoritative approval in the 1914 decision of the Ontario Court of Appeal in Murphy v. Lamphier,  O.J. No. 32, 31 O.L.R. 287, 6 O.W.N. 238 (Ont. H.C.), affirmed (1914), 1914 CarswellOnt 560, 32 O.L.R. 19, 20 D.L.R. 906 (Ont. C.A.).
Lawyers interested in this line of thought will be interested in: Fraser Estate, Re (1932), 1932 CarswellAlta 27,  3 W.W.R. 381, 26 Alta. L.R. 551 (Alta. C.A.), at para. 19; Pocock v. Pocock (1950),1950 CarswellOnt 79,  O.R. 734 (Ont. H.C.J.), at paragraph 71; Cox, Re (1953),1953 CarswellOnt 211,  O.W.N. 384 (Ont. Surr. Ct.), at para. 2; Fairchild v. Mitchell(1959), 1959 CarswellNS 14,  N.S.J. No. 14, 19 D.L.R. (2d) 521, 43 M.P.R. 9 (N.S. C.A.), at para. 73; Davis Estate, Re (1963), 1963 CarswellOnt 217,  2 O.R. 666,  O.J. No. 776, 40 D.L.R. (2d) 801 (Ont. C.A.), at para. 32; Lemke, Re (1978), 1978 CarswellOnt 3002,  2 A.C.W.S. 35 (Ont. Surr. Ct.), at para. 18; Fieldhouse (Litigation Guardian of) v. National Trust Co. (1999),1999 CarswellOnt 962,  O.J. No. 1246, 27 E.T.R. (2d) 272, 87 A.C.W.S. (3d) 616, 92 O.T.C. 297(Ont. S.C.J.), at para 65; Irwin v. Cupolo (1999), 1999 CarswellOnt 2192 (Ont. S.C.J.) at para.103; Praught Estate, Re (2002), 2002 CarswellPEI 2, 2002 PESCTD 1, 111 A.C.W.S. (3d) 389, 208 Nfld. & P.E.I.R. 64, 43 E.T.R. (2d) 289, 624 A.P.R. 64 (P.E.I. S.C.), at para 79; McInnis Estate v. Heckbert (2003), 2003 CarswellPEI 11, 2003 PESCTD 12,  P.E.I.J. No. 13, 119 A.C.W.S. (3d) 1015, 50 E.T.R. (2d) 244 (P.E.I. S.C.), at para. 29; and Coughlan Estate, Re (2003), 2003 CarswellPEI 89, 2003 PESCTD 64,  P.E.I.J. No. 85, 124 A.C.W.S. (3d) 1176, 227 Nfld. & P.E.I.R. 193, 3 E.T.R. (3d) 1, 677 A.P.R. 193 (P.E.I. S.C.), at para. 133.
The author of this blog has made an earlier effort to expand on this point and analyze those earlier cases in John E.S. Poyser, Capacity and Undue Influence, Second Edition (Toronto: Thomson Reuters, 2019) at pages 84 to 86 under the heading “A Failing Mind Can Still Exhibit Testamentary Capacity” (Link: https://store.thomsonreuters.ca/en-ca/pdp/capacity-and-undue-influence-second-edition/30835411 ).
While memory need not be perfect, some memory is a necessary precondition for a finding of testamentary capacity. That memory must extend to the nature and extent of the will-maker’s assets, the collection of persons expecting to inherit, and the grounds for that expectation found in the will-maker’s personal history with family and friends.
John E. S. Poyser
Tradition Law LLP (Winnipeg), WEL Partners (Toronto)