Most people know that you have to be “of sound mind” when you make a will, or it’s not valid. This has nothing to do with the amount of noise you make.

Most people also know that there is no bright line between a sound mind and an “unsound” mind. All of us can feel like we have “lost it” on occasion. There are, of course, those among us who really have lost it, or maybe never had it to begin with.

Where it becomes tricky is in those situations where people have good days and bad days, or where they are on medications that help, but then they don’t take them. And some folks are just plain odd and not of unsound mind, though it can be hard to tell. I’ll call this the “Grey Zone.” Do people in the Gray Zone have testamentary capacity? in order words, are they “of sound mind” so as to be able to make a valid will?

The courts in Alberta and Manitoba have recently had an opportunity to clarify the rules that apply, when the disappointed heirs of someone who made a will and/or died while in the Gray Zone claim the deceased did not have testamentary capacity when he or she made the will.

The first case, from Alberta, involved an 83 year old man who left most of his estate ($600,000) to his brother, and only $25,000 to his son. The man had a stroke in 2000, and started divorce proceedings against his wife which were concluded in 2007. The wife died in 2009. In 2010, the deceased made a new will and he died soon after.

The son sued, in part because the deceased’s previous will had left everything to the wife, and then to the son if the wife died first. That will had been made before the stroke, and there was lots of evidence that the stroke had serious effects on the deceased’s state of mind.

The son asked for the will to be “proven in solemn form” which is a process by which the will and the circumstances in which it was made are closely examined. If there are sufficient suspicious circumstances, then the will must be proven in solemn form. In this case the trial judge did not find the circumstances suspicious enough. The judge found that there was no evidence the deceased did not have testamentary capacity, even though he thought he could help people live to 200 or more years, and he had become increasingly paranoid, hanging dolls and toys around his trailer to keep out intruders.

The son appealed to the Alberta Court of Appeal, which looked that circumstances and the man’s behaviour after his stroke until his death, and found that there were indeed indications of suspicious circumstances. Therefore, the will had to be proven in solemn form. This does not mean the will is automatically set aside, but at least the court will take a good hard look at whether the deceased really knew what he was doing when he essentially disinherited his son.

The second case was heard in Manitoba. The deceased in this case was an 89 year old lady who had suffered from schizophrenia for many years. She had been hospitalized twice, once in 1970 and again in 1979 after her husband died. Other than that, she had functioned well, though she was on medication for most of her later life.

The will in question was made in 1980, after the husband’s death, and she left everything to her twin brother, and if he were to die before her, to his son Warren. The brother did die first. The children of her other siblings were put out that only one person among them, Warren, was going to get the whole estate of about $1.1 million.

The case revolved around whether the schizophrenia from which the deceased suffered had affected her capacity to make a will. The court said just because someone suffers from an illness like schizophrenia does not mean they are not of sound mind, especially if the disease is being managed, as it was here. The fact of the schizophrenia did create a “suspicious circumstance”, though, so that, as in the previous case, a close examination of whether the will was valid had to be made.

There was evidence that the deceased did behave oddly from time to time, but she was also described as bright and able. The lawyer who met with her when the will was made, was able to determine that she knew what she had, who her family members were, and even the legal description of her farm. Since the relevant date for testamentary capacity was when the will was made, the fact that she became odder as time went on was not relevant. The court also did not think it odd that the deceased left everything to her twin brother, as they had been very close. Warren, the actual beneficiary, was the brother’s youngest son, who was living at home and farming with his father when the will was made.

In the end, the court decided that just because the deceased had suffered from schizophrenia, that did not automatically mean she was not of sound mind, or that the will was invalid. It just meant there were suspicious circumstances that required the person wanting to use the will (that is, Warren) to prove it was valid. The court said it was, and that the illness did not take away the deceased’s capacity to make a valid will.

All of this is very good news for people who are in the Gray Zone. What it requires, though, is someone who knows how to determine if someone is “of sound mind,” to draft the will. When I meet with a client, whether they are potentially “in the zone” or not, I always take really comprehensive notes about what was asked, and what the answers were. It is unlikely that I am going to remember exactly what was said 10 years from now, when the client has died and the heirs start circling and I am called to testify about the state of mind of the deceased. But I’ll have my notes to help.

So please don’t be offended when your lawyer says they can’t just “send you the forms to sign” when you make a will. And if you think you can just use a “will kit”, who is going to testify when the relatives you left out of your will take a run at it? Hmm?