Report on Tests of Capacity

The British Columbia Law Institute (BCLI) recently published an article entitled, Report on Common-Law Tests of Capacity, BCLI Report no. 73 (Sept. 24, 2013).  Provided below is the abstract from SSRN:

The British Columbia Law Institute’s Rationalizing and Harmonization of BC Common-Law Tests of Capacity Project concerned itself with how the law determines whether a person has the mental capacity to make a legally effective decision, to enter into a transaction, or to form a relationship with another person. For a very long time, the law’s basic position has been that a medical diagnosis of mental illness, disability, or impairment is not enough, standing on its own, to compel the conclusion that a person is mentally incapable. Instead, the law has applied a series of distinctive tests of capacity, which are geared to the specific type of decision, transaction, or relationship at issue.

This project examined nine tests of capacity that have developed, and that continue to be embodied, in court decisions. These selected tests of capacity cover some major legal decisions, such as those that are made when a person wants to make a will, to make a gift, to enter into a contract, and to marry or separate from a spouse. The project’s final report makes 31 recommendations for reform of the law govern-ing the selected tests of capacity. Some of these recommendations call for legislative changes, which the report illustrates with a draft statute.