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The Burden of Proof When Contesting Wills

The Burden of Proof When Contesting Wills

Leung v Leung 2013 BCSC 976 sets out a concise legal framework of the burden of proof when contesting wills.

  1. In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will maker knew and approved of the contents of the will, and that the will maker had testamentary capacity Vout v hay (1995) 2 SCR 876 at paras 19-20;
  2. In order to make a valid will, the will maker must have a baseline level of mental acuity or a disposing mind and memory, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her or his estate and the extent of his or her property of which he or she is disposing. Lazlo v Lawton 2013 BCSC 305 at para. 185. The assessment of whether a will maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances James v Field 2001 BCCA 267 at para.51;
  3. In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to, or by a testator who appeared to understand it, it is presumed the testator possess the requisite testamentary capacity and knew and approved of its contents Vout at para. 26;
  4. This presumption may be rebutted by evidence of well grounded suspicions, referred to in jurisprudence is suspicious circumstances, relating to one or more of the following circumstances
  5. Surrounding the preparation of the will;
  6. Tending to call in to question the capacity of the will maker; or
  7. Tending to show that the free will of the will maker was overborne by acts of coercion or fraud
  8. If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will, then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will maker to make a will. Woodward v Grant 2007 BCSC 1192 at para.108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised. Ostrander v Black (1996) 12 ETR 219 at para. 20
  9. In Vout the court affirmed that if the court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case. In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity Maddess v Racz 2009 BCCA 539 at para.31. The court in Scott v Cousins (2001) 37 ETR 113 describes the requisite evidence as that which excites that the suspicion of the court. The evidence must raise a specific and focus suspicion Clark v Nash (1989) 61 DLR 409 at 425 (BCCA)

The court in Laszlo provided the following instructive observations regarding the doctrine of suspicious circumstances at paragraph 207:

“Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit. The classification. Commonly occurring themes include were beneficiaries instrumental in the preparation of the will(especially where the beneficiary stands in a fiduciary position to the testator), or where the will favor someone who is not previously been the object of the testator’s bounty and does not fall within the class of persons tested is usually remember in their wills, that is to say their next of kin”

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