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Saturday, May 4, 2013

Testamentary capacity and alcoholism

One of the basic rules of wills is that in order for a will to be valid, the person whose will it is must have testamentary capacity. This concept is often referred to as being of sound mind. In some cases, the lack of sound mind is pretty clear; a person who has taken morphine or other pain-killing drugs, or who has advanced dementia, for example, is no longer able to make a will.

In other cases, it's not so clear as to whether a person is of sound mind. It's an important question because it makes the difference between a will being valid or not, which could affect thousands (or more) of dollars worth of assets. What if the person who made the will was an alcoholic? And what if that alcoholic person made a new will which went against promises he or she had made during life?

This is a really tricky area of law for lawyers and judges, and believe me, we don't take it lightly. We really want to get it right. I recently read an article by Justin de Vries, who blogs at www.allaboutestates.ca, in which Mr. de Vries discussed the case of Helen Oshchypok (Lata v. Rush), who was an alcoholic. Click here to read his article. Click here if you want to read the whole case directly from the court.

The bottom line in this case is that a person with chronic alcoholism can make a valid will, but it's very much on a case-by-case basis.

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