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Relaxed Capacity Test for Codicil Changing Executor ?

By John E.S. Poyser, BA LLB TEP, Senior Estate Litigator WEL Partners

The test for testamentary capacity is the well-known test from Banks v. Goodfellow. Can that test be relaxed in the case of a codicil that effectively tinkers with a will without changing the basic distribution of wealth? This question might come up if a codicil simply adds a small bequest (“Give $5,000 to my nephew Bob”). It might also come up if a codicil simply changes the appointment of an executor (“I appoint Bob to be my estate trustee in the place of Sally who is currently named in my said Will”).

That latter fact situation was considered in a recent Queen’s Bench decision out of Manitoba, Re Hazlitt Estate, where the court concluded that the capacity threshold for a codicil that simply changes an executor would and should be lower than the capacity threshold for a more complex will:[1]

I accept, with respect to the Codicil, that a mere change of executor would require a lower capacity than would the execution of a complex will. This is apparent given the nature of the factors reflected in Banks v. Goodfellow relating to the dispositive provisions of a will, which in this case remained unchanged by the Codicil.

The court did not cite authority for that proposition. Yet it makes perfect sense and is submitted to be good law. Other authority is available dealing with the capacity to make a codicil,[2] but nothing hits the point as squarely as Re Hazlitt Estate appears to.

[1] Hazlitt Estate, Re, 2017 CarswellMan 500, 2017 MBQB 184 (Man. Q.B.), at para 44 per Grammond, J.

[2] Consider Dufour v. Croft (1840), 13 E.R. 59, 3 Moo. P.C. 136 (Eng. Privy Council), Re McPhee (1965), 1965 CarswellBC 110, 52 DLR (2d) 520 (B.C. S.C.), and Re Souch Estate (1937), 1937 CarswellOnt 68, [1938] 1 DLR 563 (Ont. C.A.). The author has made a more extensive effort to analyze the law on point at John E.S. Poyser, Capacity and Undue Influence (Toronto: Thomson Carswell, 2014) at pages 176 to 181.

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