Suspicious Circumstances and Testamentary Capacity

Suspicious Circumstances and Testamentary Capacity

It’s important that will drafters be aware of and watch for any suspicious circumstances that might exist when taking will instructions.

Preparing a will in the presence of suspicious circumstances simply increases the risk that the wills draftsperson might end up testifying about the validity of the will in subsequent years.

The litigation issue is usually an allegation of lack of testamentary capacity when the will instructions were given and when the will was acknowledged (signed?) , both being requirements of a valid will.

The Doctrine of “Suspicious Circumstances”

In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone, 1931 SCR 695

“When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.”

The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion.

The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator.

In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.

It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations after “probing the mind of the potential will maker” , and the notes preserved.

A seemingly in-exhaustive short list of the innumerable circumstances which might be suspicious is as follows:

(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;

(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;

(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;

(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;

(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;

(f) where the will substantially deviates from previous wills . Always review previous wills prior to taking instructions and having a new will executed.;

(g) where a gift is made to a person standing in a fiduciary relationship;

(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;

(i) where you receive the testator’s instructions from someone other than the testator;

(j) where there has been a recent serious illness or hospitalization;

(k) where there is any question at all about testamentary capacity;

(l) where there are indications of alcohol abuse or medications that are potentially mind altering, being used;

(m) where there is a hasty or unwise marriage or common-law relationship;

(n) where there is evidence of depression;

(o) where there is a language/cultural disability or illiteracy;

(p) if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.

(q) The recent widower and the young woman to inherit everything scenario

In circumstances where the testator has a will and substantial changes are being made, it would be prudent for the wills drafter to enquire of the testator as to the provisions of the previous will and the reasons for the changes.

Similarly if a child or children are being disinherited, the wills drafter should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act, ( now S 60 WESA) and enclosing a copy of that signed memorandum with the original will. The memorandum’s facts must be accurate so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.

Laszlo v Lawton 2013 BCSC 305

The law relating to testamentary capacity and suspicious circumstances was canvassed in Laszlo v Lawton 2013 BCSC 305.

The court recognized that faltering mental capacity is prone to fluctuate and the court authorities permit variation of the degree of capacity required at these pivotal times.

To lack of testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without mental capacity while seemingly compromised persons may possess it. It may change in fluctuate slightly or wildly so that at times a person may be of sound mind, while at other times may not be.

The Courts recognize that dementia can impair a testator’s mental powers, such that he or she is not capable of making a will, however, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity.

Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will.

The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances. Testamentary capacity, however, is not a medical concept her diagnosis- it is a legal construct.

Medical evidence, while important and relevant, is neither essential nor conclusive in determining the presence or absence of testamentary capacity.

Lay witnesses who have known the testator for many years can be very significant witnesses, and it is open to the court to accord greater weight to lay evidence than to medical evidence, or reject the medical evidence altogether.

The leading decision of Vout v Hay (1995) 2 SCR 876 , affirmed that the legal burden of proving due execution of the will and both testamentary capacity and that the testator knew and approved of the contents of the will is with the party propounding the impugned a will.

There is a rebuttable presumption that the testator does it stop the requisite knowledge and approval and testamentary capacity were the will was duly executed.

The Vout decision clarified that the presumption may be rebutted by evidence of well grounded suspicions, known as “suspicious circumstances” relating to one or more of the following circumstances:

1) surrounding the preparation of the will;

2) tending to call in to question the capacity of the testator;

3) tending to show that the free will of the testator was overborne by acts of coercion or fraud.

This presumption, places and evidentiary burden on the party challenging the will to induce or point to some evidence which accepted, would tend to negative knowledge and approval or testamentary capacity Vout at para. 27.

The usual civil standard of proof, namely proof on a balance of probabilities generally applies to dispelling the suspicious circumstances that have been raised. As a practical matter, the extent of proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case.

The courts are clear that a general miasma of suspicion that something is unsavory may have occurred will not be sufficient. Clark v. Nash (1989) 61 DLR (4th) 409 BCCA


Suspicious circumstances exist in a wide array of situations and are not necessarily sinister in their nature. Very often a close observation and questioning of the testator will reveal one or more of a non-exhaustive list of circumstances which might give rise to being labeled suspicious circumstances and thus reversing the onus of proof in a testamentary capacity case.

Accordingly, will drafters should spend extra time questioning such a testator, and confirming records and ownership documentation in determining whether the suspicious circumstances are sufficient to question whether the proposed testator has sufficient mental capacity.

Wills Drafting 101

Wills Drafting 101 | Disinherited Vancouver Estate Litigation

The cardinal rule of wills drafting is that there is no such thing as a “simple will.”

There is a tendency amongst some wills practitioners to underestimate the difficulty of drafting a proper will. Many practitioners still seemingly believe in the myth of the “simple will”. It must be stressed that any document that has consequences as permanent and far-reaching as a will can never be “simple”.

Even a straightforward will can be fraught with drafting problems and potential liability. As we know, a will speaks from death and cannot be altered after death. I refer to these types of wills as potential “time bombs” of liability. There is no opportunity to correct errors, confirm what the testator really meant, fill in the gaps or modify the ambiguous. A small drafting error can create an ambiguity that may take years to resolve in the courts. In a nutshell, a poorly drafted will may very well come back to haunt the draftsperson after the death of the testator.

Most drafting errors are probably caused by inexperience and haste on the part of the draftsperson. Unfortunately, many practitioners perceive that a wills practice is not lucrative, and that in turn causes many practitioners to over delegate the drafting to legal assistants, without providing adequate supervision of their work. Many practitioners take instructions hurriedly, draft wills hastily, and spending insufficient time on investigating facts of law, questioning clients, and reviewing the will. Many practitioners are dabblers in this area and do wills almost as a courtesy to their clients.,

A will is a very personal document, and is quite literally, a testator’s last word about how his or her estate is to be disposed of. The only constraints on the testator’s wishes are public policy and the law, and if neither are contravened, the testator can make almost any type of will.

The wills practitioners has several duties that include:

1) Spending sufficient time to properly canvass with the client his or her instructions ,and then understanding those instructions precisely, after giving appropriate advice with respect to same;

2) Translating the instructions into testamentary provisions that are valid and that clearly express the testator’s intentions;

3) Gathering all the information required in order to properly prepare the will and to give effect to the testator’s wishes;

4) Taking into account other documents to which the testator is a party, such as dealing with assets that pass outside of the estate, and applying legal principles that may affect the provisions of the will.

Simply put, it is the wills practitioner’s duty to ask the right questions and draft the will properly in accordance with the client’s instructions.

All this takes time, and together with the pressures of high overhead and other such demands, the practitioner may be tempted to draft wills in haste. Historically, most wills practitioners have charged a fixed fee for the preparation of wills, and not billed their actual time that they have spent on the file. This has led many practitioners to view the drafting of wills as a non lucrative type of work. Thus they typically want to take shortcuts to save time.

Wills practitioners should consider the following factors:

1) There is no rule preventing the practitioners from charging his or her actual time, and in fact such a practice should be encouraged.

2) The practitioners should explain to the client the amount of time it properly takes to prepare a will, the amount of expertise that is required for same, the risk of liability, and the amount of assets that is being dealt with in order to help persuade the client that the cost may be higher than he or she wishes to pay, but that it is still good value in the “big picture” of things.

3) If the client is unwilling to pay, then it is open to you to refuse to do the work.

4) If you accept the work, then you accept the responsibility of doing it properly and promptly.

Getting the necessary information from the client

Clients frequently attend to your office with firm decisions about how they want to dispose of their estates. It is your duty to properly examine and scrutinize these instructions as many of these instructions are often neither practical nor advantageous to the interest of the estate or to the beneficiaries. The wills draftsperson must educate the client and explain to the client the nature and consequences of the proposed testamentary provisions. It is not uncommon for the clients initial instructions to be flawed. One of the worst examples that I have seen of this was a will prepared by a notary that gave two individuals who did not even like each other, a life interest in the same piece of property. The results were perverse and ended in litigation.

Another example of this was a will that I was asked to give an opinion on where the deceased left her $1 million estate for the benefit of her two dogs and four cats for their lifetime. The life expectancy of the cats was 20 years. Upon the death of the last pet the estate went to the deceased’s business partners, as she had no spouse or children. While the testator is quite free to do such a will, I really question whether the drafting solicitor exercised sufficient firmness to try and dissuade the testator from doing such a will. In my view it would have been far more preferable to set aside a sufficient sum of monies to care for the pets for the remainder of their lifetime, ( the gravy train formula) and to have dispersed the majority of the monies after probate to the residual beneficiaries.

I have many other examples. I recently had a vigorous discussion with a long time Chinese client who wanted to leave his entire estate to his only son, and nothing to his wife of 40 years or their daughter. His explanation of “Chinese custom” did not wash with me.

What I am attempting to say is that clients often have firm opinions as to what they think they want to achieve with their will that are often simply not practical, or even possible, and might surely end in litigation. It is the job of the drafting practitioner to provide proper objective counsel in this regard.

I think it is essential that a proper checklist such as the Law Society checklist for wills instructions be used. It can often be condensed to make it more workable. To get the correct information, the practitioner must ask the right questions. The wills practitioner can simply never have too much information in order to give proper advice. The bottom line is that it is your duty to carry out the client’s instructions as closely as possible, but it is an equally important duty to make sure that clients understand that they should not necessarily do what they want to do, and if they insist after proper advice, then they must accept and approve the consequences.


Sample organizational chart for a will

One tried and true technique of wills drafting is to try and break the will down to it’s basic components, so as to demystify the task at hand. Here is a sample of how most wills can be broken down:

Part One: Initial matters

A) Last Will Revocation

B) Appointment of executor and trustee

C) Appointment of alternate executor and trustee

D) Appointment of Guardian


Part Two: Disposition of estate

A) Vest property in trustee

B) Disposition to Beneficiaries:

1) Specific Bequests

2) Pay Debt, testamentary expenses

3) Legacies

4) residue

5) alternative residual beneficiaries


Part Three: Administration of Estate

Powers of Trustee

1) power of the sale or conversion

2) trust for minors

3) payment for minors

4) investment Powers

5) power of distribution in specie

6) power to carry on business and other powers that may be necessary or appropriate


Part Four: Closing Matters

Miscellaneous Provisions

1) charging clause

2) funeral wishes

Remember that the client must “know and approve the contents” of the will. In order that this can be achieved the goal should be to draft a will that the client may read and understand for herself for himself. Words used in the will are given their ordinary meaning by the courts. A Judge should only consider the will and the facts and circumstances known to the client at the time the Will was made to determine the client’s testamentary wishes. The use of a logical arrangement of paragraphs and clauses such as displayed in the above noted organizational chart will assist the client in that endeavor. The use of headings, definitions, and the numbering of paragraphs and clauses will also assist in that regard. Also bear in mind the aging population, and use a reasonably large font.

Style of Drafting: 19 Tips

1) Strive for simplicity without sacrificing precision.

2) Strive for brevity without sacrificing comprehensiveness.

3) Be consistent in the use of tense and the use of terms. All of the clauses to be used must then be looked at together to ensure a uniform drafting style throughout. The will created must not look for like a patchwork quilt of style and language, as this could lead to interpretation problems and possible negligence claims .

4) Strive for the use of modern plain language rather than verbose and archaic expressions. For many years now there has been a movement towards the use of plain language to replace legalese and bureaucratic writing. Plain language is straightforward prose, carefully written with the needs of its primary readers in mind. Strive to make your average sentence length shorter , and to simplify your sentence structure.

5) Strive to eliminate redundant words and phrases. Wills draftspersons have the tendency to use couplets and triplets when one word carries the intended meaning. For example the words nominate, constitute an appoint could be condensed to simply appoint. The words give, devise, and bequeath could be shortened to simply give.

6) Strive to not use foreign words in wills, unless you’re referring to foreign places or persons. For example do not use Latin phrases such as “bona fide” when the English good-faith conveys the same meaning. Similarly do not use expressions such as “cy-pres” or “a ventre sa mere”, when they can be replaced with “as near as possible” and “in its mothers womb”

7) Do not use the word “issue” which ordinarily means all of the deceased’s lineal descendants, but instead use the words child or children, grandchild or grandchildren. Similarly do not use the words per stripes or per capita but instead describe the method of distribution.

I am currently litigating the following clause from a will that uses the word issue:

“To divide the residue of my estate between my daughters Mary and Joan who survive me in equal shares per capita but if any child of mine predeceases me leaving issue him or her surviving, the issue of that deceased child surviving me shall take (and if more than one in equal shares per stripes as tenants in common) the share which his or her or their parent would have taken if living.”

The deceased had a son that predeceased him by 10 years leaving two children. At the time he executed his will he only had the two daughters Mary and Joan. The Will is poorly drafted in that it refers to both the word issue as well as the words any child of mine– him or her surviving. I am arguing that the issue of the deceased child, namely the deceased child and the children born of the child ( grandchildren) share equally in the estate with Mary and Joan.

However, leaving aside the poor draftsmanship that has resulted in litigation, I have never met a client yet that wants to provide for his or her lineal descendants. They usually want to provide for their children, and if a child has predeceased, leaving grandchildren, then to the grandchildren instead.

8) Do not do codicils as it is too easy to make a mistake. Disregard the client’s concerns about costs in this regard. If the client wants to make a change to a will, then draw a new will.

9) Try to use percentages or shares rather than specific amounts. Then add up the percentages or shares several times to ensure that they add up to 100 percent. In Sarkin v Sarkin estate, 36 E.T.R.139, , the draftsperson did use shares, but they only added up to55% of the residue. The remaining 45% went by way of a partial intestacy.

10) Do not use precatory words such as a “wish” as they are not binding on the executor.

11) Be precise in your description of assets so as to avoid ambiguities.

12) Carefully check for inconsistent clauses

13) Check to see that no intestacy or partial intestacy has been created. I once litigated a homemade will where the testatrix put in a specific clause stating that she did not wish her brother to ever share in her estate by reason of bad past behavior. She executed the will without having included a residual beneficiary clause, and thus created a partial intestacy. The effect was that her next of kin, namely her brother, inherited.

14) Sufficiently identify each beneficiary. Charities can be a particular problem and it is necessary to both understand the structure of the charity and obtain the testator’s instructions as to which part of the charity he or she wishes to benefit, as well as to ensure that the name of the charity is correct. The charity should be contacted if possible to ensure accuracy. Leaving a bequest to “ charitable and educational institutions” will undoubtedly lead to lots of litigation amongst various charities and education institutions..

15) Be consistent in the words that you use.

16) Try not to leave a specific parcel of property to a beneficiary as there is a good likelihood that the testator will not own the property at the time of his or her death. A better way to accomplish such an intention is to use a clause such as “to transfer to Mary, if she survives me, whatever house and property that I own at the time of my death”, or such similar type clause.

17) Only attempt to do wills that you are completely experienced with and totally comfortable doing.

18) Review the will clause by clause very carefully with the client. It should never be a cursory review. It may be helpful to paraphrase each clause to the client in simple terms, as most clients do not really understand what most of the clauses mean. It is suggested that where possible and practical, e mail, fax or at least mail the wills to the client review prior to seeing them in your office. This gives the client time to consider the will, and to reflect on it and make any changes that the client considers appropriate. This is preferable to the client attending and requesting changes to be made in your office while they are there, as these types of changes are often rushed.

19) Use technology but beware that it sometimes does strange things like leave out paragraphs and other such unexplained mistakes.



I again stress that there is no such thing as a simple will. While a wills practice can be enjoyable and rewarding, the draftsperson can never let his or her guard down for one instant re the myriad of potential problems that can arise in this type of practice. The client needs firm advice and guidance throughout the taking of instructions, and again during the review of the will at the time of execution. Charging appropriate fees can mitigate the pressure that practitioners often feel to “rush” the will process due to overhead pressures.