Testamentary Capacity in Ontario — What It Means and How to Prove It

The Banks v Goodfellow test (1870) — still the standard

Banks v Goodfellow is a 19th-century English case that Canadian courts still cite as the definitive test for testamentary capacity. The Supreme Court of Canada has affirmed it; every provincial court of appeal applies it.

The test is functional: it does not ask whether the testator was 'of sound mind' in some general sense. It asks four specific questions about the testator's understanding at the moment the will was executed.

The four elements of testamentary capacity

• ✓<strong>1. Knowledge that you are making a will.</strong> You must understand that the document you are signing is your will and that it will distribute your property after your death.
• ✓<strong>2. Knowledge of the nature and extent of your property.</strong> You must have a general understanding of what you own — your home, your investments, your bank accounts, your business interests. Not exact dollar amounts, but the rough shape of your estate.
• ✓<strong>3. Knowledge of the natural objects of your bounty.</strong> You must understand who you would normally be expected to provide for — your spouse, your children, your dependants — and you must consider them when making your will, even if you choose to leave them out.
• ✓<strong>4. No mental disorder distorting your judgment.</strong> No delusion or condition is corrupting your decisions. Mild dementia does not necessarily disqualify; severe dementia, paranoid delusions, or undue influence may.

When capacity gets challenged

Most capacity challenges in Ontario follow predictable patterns:

• ✓An adult child is disinherited, in whole or in part, in favour of a sibling or a new partner.
• ✓The will is signed in the months before death, especially after a dementia or stroke diagnosis.
• ✓Most of the estate is left to a recent caregiver, romantic partner, or charity outside the family.
• ✓The testator was on medication that affects cognition (opioids, sedatives, certain dementia drugs).
• ✓There was a sudden change from a prior will, especially after the testator entered long-term care.

What the court looks at

When capacity is challenged, the Ontario Superior Court (Estates List) examines:

• ✓Medical records from around the date of signing — primary care, specialists, medications.
• ✓Witness testimony — the people who watched you sign. Their recollection of your behaviour, your understanding of the document, your conversation about your assets and family.
• ✓The will-drafting professional's notes — did the lawyer or notary speak with you alone? Did they ask the four-element questions? Did they record your answers?
• ✓Prior wills and codicils — is the new will a sudden departure or a coherent evolution?
• ✓Any video, audio, or contemporaneous record of the signing.

How a capacity video defeats most challenges

A capacity video is a short recording filmed at your execution appointment. You walk through the four elements on camera, with your notary or lawyer present, before you sign. The video is dated, witnessed, and stored.

When the will is later challenged, the video is the strongest single piece of evidence. It is contemporaneous (made at the moment of signing), it shows your demeanour and understanding, and it records you answering the exact four-element questions the court will apply.

Most capacity challenges that face a competent capacity video are abandoned before trial. The lawyers see the video, advise their client that the case is unwinnable, and the matter settles or is withdrawn. Estate is preserved, your wishes are honoured.

Canada Notary capacity video service

Canada Notary offers a Testamentary Capacity Video service in our Legacy Vault. The video is filmed at your execution appointment in Toronto. We walk you through the Banks v Goodfellow elements on camera. The recording is dated, witnessed by your two execution witnesses, and stored encrypted in our Canadian-resident vault until needed.

The service is most strongly recommended in three situations: (1) you are over 75, (2) you are disinheriting a child or close relative, (3) you have a recent diagnosis affecting cognition (dementia, Parkinson's, post-stroke, etc.).