How Can a Lawyer Know You Are Sound of Mind?
When a lawyer helps someone prepare a Will in Ontario, they have a duty to ensure that the person making the Will is sound of mind. And that they understand the nature and consequences of their decisions. Here are some ways that a lawyer may assess a person’s mental capacity:
- The lawyer may have a conversation with the person to determine their mental state and capacity to make decisions.
- Questions may be asked about the person’s assets, liabilities, and beneficiaries to ensure that they understand the nature of their property and who may be affected by their Will.
- The lawyer may ask the person about their medical history and any cognitive impairments or mental illnesses they may have.
- If the lawyer has concerns about the person’s capacity, they may recommend that the person undergo a capacity assessment by a medical professional.
- Sometimes, the lawyer may also request witnesses be present during the Will-signing process. This is to confirm that the person making the Will appears to be sound of mind and capable of making decisions.
It’s important to note that a lawyer’s assessment of a person’s mental capacity does not guarantee their capacity. If there is any doubt about a person’s ability to make a Will, the lawyer may recommend that the person undergo a capacity assessment or seek medical advice.
At Smartwills we have a four-part consideration that determines soundness of mind to make a Will.
In order to have the necessary mental capacity to create a valid testamentary trust, the Testator must know the following:
(1) the nature and extent of his or her property;
(2) knowledge of the persons who will receive the Estate :
(3) an understanding of the disposition he or she is making; and
(4) the manner in which those facts all relate.
Read our blog post about Who Can Make a Will in Ontario
Check out this video on Why You Need a Trusted Contact Person
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This material is for general information and educational purposes only. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions.