Will Upheld- No Suspicious Circumstances

No suspicious circumstances

Validity of a Will and Suspicious Circumstances

Maddess v Racz 2009 BCCA 539 is a testamentary capacity case where the trial judge and the court of appeal both uphold the validity of a will and find no suspicious circumstances that would rebutt the presumption of testamentary capacity.

The deceased mother had one son, now also deceased, and two daughters, one of whom died prior to matter proceeding to trial.

The mothers’ will left her rest in apartment building, worth over $5 million, to her with the under of $8 million estate evenly divided between children.

The daughter was sole heir of the deceased son and she brought an  application for an order pronouncing her mother’s will in solemn form.

The trial judge granted the order and  concluded that the will was valid, and that there was nothing that amounted to suspicious circumstances.

The trial judge found that the concerns about the mother’s English skills and business understanding did not affect her testamentary capacity.

The defendant’s estate appealed and the appeal was dismissed .

The trial judge applied the correct legal test  and the Trial judge’s conclusion that the presumption of validity applied was fully supported by the evidence.


  • The propounder of a will has the burden of proving that the testator knew and approved the contents of his or her will. In doing so, the propounder is aided by a rebuttable presumption that once it is established that the will was read by the testator, or the contents otherwise brought to his or her attention, and that he or she appeared to understand it, the testator will be presumed to know and approve of the will.


  • This presumption can be rebutted by adducing or pointing to some evidence which, if accepted, would tend to negative the knowledge and approval. This is known as the suspicious circumstances doctrine. If the presumption is rebutted, the propoundeer of the will is required to prove the will on a balance of probabilities. See Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.) at para. 27:

Where suspicious circumstances are present, then the presumption is spent and the .propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

  • The Appellant relies heavily on this passage from Vout. So did the trial judge. The trial judge clearly and carefully set out the applicable law. The test is “adducing or pointing to some evidence, which if accepted, would tend to negative the knowledge and approval”. The important aspect of the test is not “some evidence”, it is “some evidence… that would tend to negative the knowledge and approval.” The trial judge found that none of the evidence met the requirement of negating “knowledge and approval”. For example, the trial judge found that the fact that Rosalie Racz did not speak very good English did not, in and of itself, tend to show that she did not have the required knowledge. The fact she was not sophisticated in business, again, does not tend to show that she did not know the effect of her clear instructions to Mr. Mazzei.”

– See more at: http://www.disinherited.com/blog/appeal-court-upholds-wills-validity-and-finds-no-suspicious-circumstances#sthash.uLnHyBzm.dpuf

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