Will Executed While Testator Was "Drinking Heavily" Declared Invalid
The test for whether a person has the capacity to create a will is whether, at the time the will is executed, the person understands and appreciates what his or her assets and liabilities are and who his or her dependants are. It stands to reason then, that being under the influence of alcohol or drugs would negate testamentary capacity.
In Re Bradbury Estate, the testator was drinking heavily with two friends. He scribbled out a holograph will, which is a handwritten signed document leaving all of his possessions to one of the two friends. The other friend witnessed the signature. In the normal course, the testator would have sobered up and either rewritten the will or kept it as it was. However, by a bizarre twist of fate, the testator was murdered later that same night.
The executor of the will attempted to probate it but the family opposed it on the grounds that the heavy drinking gave rise to suspicious circumstances that the testator was unable to know and appreciate his assets and obligations.
The court agreed and declared the handwritten will to be invalid on the basis that, after drinking the amounts in question, the testator lacked capacity to execute a valid will.
The Lesson: Don't drink and devise (or bequeath). It is preferable to do your estate planning sober.
Re Bradbury Estate, 1996 CarswellAlta 323
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