Article on Common-Law Tests of Capacity
Judge-made tests of mental capacity that determine whether a person meets the cognitive threshold to make a legally valid decision, enter into a transaction, or form a relationship hold sway over some important areas of the law. This consultation paper examines nine common-law tests of capacity, spanning tests that operate in wills-and-estates law, contract law, and family law. The consultation paper contains 31 tentative recommendations for reform. These tentative recommendations include proposals for maintaining the current common-law tests of capacity to make a will and to marry, clarifying the test of capacity to make an inter vivos gift, fine-tuning certain contractual rules that relate to mental capacity, and creating a new procedure allowing an application to court to make, alter, or revoke a will for a person who does not have testamentary capacity.