For the testator to have testamentary capacity, he must be at least eighteen years old and of sound mind.
As an exception, the Code recognizes nuncupative and holographic wills for mariners at sea and Soldiers and Sailors "while in actual military or naval service," but the effectiveness of such wills for a service member expires one year following discharge from military service if the service member then has testamentary capacity.
The seminal statement of what constitutes testamentary capacity, and hence what must be proven, was stated by Justice Cockburn in the English case of Banks v.
Rather, its application in each case underscores that testamentary capacity is a question of fact and very much a pragmatic inquiry.
Lay witnesses are allowed to give opinion evidence on matters relating to testamentary capacity because their observations of mental capacity are the kind of judgments individuals without expertise make on a regular basis.
A finding of testamentary capacity does not depend on scientific or medical definition; it is a question of fact.
There is Alberta case law that says a lawyer has no obligation to obtain a medical opinion as to a testator's testamentary capacity when, in obtaining instructions from and reviewing the contents of the will with a testator, the lawyer had no concern about the testator's capacity to make a will.
The best evidence will be contemporaneous medical evidence that was solicited for the very purpose of assessing a person's testamentary capacity.
McCardell did not have the necessary testamentary capacity
to execute the wills in 1981, and that after March 22, 1981, she was of unsound mind, so as to invalidate any documents signed by her after that date.