Rewind that Evidence: The Complexities of Relying on Recordings to Challenge Testamentary Capacity
In estate disputes where a will is contested based on the testator’s mental capacity, video clips or sound bites of the testator appearing disoriented or confused may seem like powerful evidence for a party challenging the testator’s capacity. However, courts often cautiously approach such recordings. A recent decision by the British Columbia Court of Appeal illustrates that recordings intended to rebut the presumption of capacity can sometimes be more misleading than illuminating. Here is why relying on recordings can backfire and what to keep in mind when considering or responding to this kind of evidence.
Lessons from a Recent Decision
In Walker v. Walker, 2025 BCCA 64 [Walker], the Court dismissed an appeal by two brothers seeking to remove and sue their aunt, the executor of their grandmother’s estate. The brothers sought to introduce videos of the grandmother, taken by a companion, to suggest she was incapable at the time. The videos show the grandmother lying in bed, talking to a teddy bear or tossing a ball to an imaginary dog, appearing somewhat disoriented. The Court found these videos were, among other things, lacking probative value.
Harris JA, at paragraph 39 of the decision, criticized the videos as being brief, lacking context, and ultimately unhelpful in drawing any reliable conclusions about capacity. This outcome aligns with established legal principles on testamentary capacity and is a helpful example of how the courts will analyze the probative value of evidence that a layperson may assume is determinative of an issue.
Understanding Testamentary Capacity
For someone to make a valid will, they need to know the property they own and who might reasonably expect to inherit from them. Their judgment must not be impaired by mental disorders that distort feelings, cloud moral understanding, or obstruct clear thinking. They must not be influenced by delusions that lead to decisions they would not make if mentally sound (see Laszlo v. Lawton, 2013 BCSC 305 at paras. 185-188 [Laszlo], citing nineteenth century case of Banks v. Goodfellow).
Timing also matters. Generally, capacity must be established at two material moments: when instructions are given and when the will is executed. Lacking capacity does not mean a person is permanently mentally unfit; what matters is whether they possess sufficient clarity at those material moments to understand their actions and consequences (Laszlo at para. 189). Capacity can fluctuate, even on a day-to-day basis in some cases.
Given these principles, it is understandable that the Court of Appeal gave little weight to the videos in Walker, in contrast to the Ontario Superior Court’s approach in Carinci v. Carinci, 2023 ONSC 6094. In Carinci, a lawyer recorded the virtual will signing ceremony of Suzanne Carinci (Ms. Carinci). At one point of the video, Ms. Carinci appeared confused and could not answer the lawyer’s questions about whether she had received and reviewed the draft will, Ms. Carinci then looked up and is and was coached by someone off screen to say “yes.” At paragraph 21, Myers J., noted discomfort with the deceased’s understanding on the day of signing — a crucial distinction from Walker, where the video did not relate to the material moment of will execution.
Implications Going Forward
Walker underscores the challenges of using video as evidence to rebut the presumption of testamentary capacity. After all, capacity fluctuates, context is key, and timing is critical. A one-off recording of a testator appearing disoriented does not provide the court with context into whether the disoriented state was momentary or ongoing. Most importantly, such recordings do not offer insight into the testator’s mental state at the material moments of providing instructions or executing the will. Likewise, video evidence, unlike sworn testimony, lacks safeguards against truthfulness.
Privacy concerns may also arise, particularly if medical information is disclosed and the video is disseminated. Legal practitioners should remember that while British Columbia permits recording conversations without consent if one is a party to the conversation, lawyers must inform clients or other lawyers of their intention to record (BC Code of Professional Conduct, Rule 7.2-3).
Video evidence may grab attention, but without proper context and timing, it can carry little weight in court in estate disputes.