After the death of a loved one, clients will often seek advice
when they believe that the last Will of the deceased does not
reflect his or her true intentions. As counsel, we often hear our
clients tell us of the health ailments suffered by the deceased
that must have prevented them from truly being able to execute a
last Will or even allegations of others trying to influence the
contents of the Will. Meetings of this nature usually culminate in
the client asking what it will take to challenge the Will. In order
to answer this question, we will need to advise our clients as to
what grounds upon which a Will can be challenged and what burdens
of proof they must meet in order to be successful. This article
will provide an overview of the burden of proof that must be met by
clients who wish to challenge a Will on the basis of suspicious
As set out by the Supreme Court of Canada in Vout v.
Hay, there are three categories of suspicious circumstances.
They include circumstances surrounding the preparation of the Will;
circumstances tending to question the capacity of the testator; and
circumstances tending to show that the free will of the testator
was overborne by acts of coercion or fraud. An explanation of each
First, the Executor, as the propounder of the Will, has the
burden of proving on a balance of probabilities the required
formalities of the Will, that is that the Will was read over by or
to the testator who appeared to understand it and the Will was duly
executed. If the propounder is able to do this, there is a
rebuttable presumption that there was testamentary capacity.
Second, the challenger to a Will may raise suspicious
circumstances to negative testamentary capacity. Evidence of
suspicious circumstances is evidence which, if accepted, would tend
to negate knowledge and approval or testamentary capacity. Here,
the challenger must raise enough evidence to satisfy the Court of
suspicious circumstances before the burden shifts again to the
propounder, the Executor, to prove testamentary capacity on a
balance of probabilities. Testamentary capacity or "sound
disposing mind" is demonstrated when the testator understands
the nature and effect of a Will. They must also recollect the
nature and extent of their property and understand the extent of
what they are giving under the Will.
Lastly they must also remember the persons that they might be
expected to benefit under their Will, and, where applicable,
understand the nature of the claims that may be made by persons
they are excluding from the Will.
With respect to the third category of suspicious circumstances,
that being that the testator's free will was overborne by
coercion or fraud, the burden lies on the challenger to show undue
influence or fraud on a balance of probabilities. With respect to
the third category of suspicious circumstances, the challenger must
show that the freewill of the testator was overbourne by acts of
coercion or fraud. If this can be established, the Will would be
declared invalid. The challenger would have the burden of proving
that the testator was overborne by the influence exerted by another
person such that there was no voluntary approval of the contents of
the Will. It is not enough to show that a person is in a position
to exert persuasion on the testator to execute a Will in their
favour or to show that such Will was executed in their favour as a
result of persuasion. In fact, influence is permissible so long as
it does not amount to undue influence. Undue influence must amount
to coercion or victimization and be so overpowering as to be clear
that the Will is not the Will of the testator but that of another
person. Essentially the challenger must show that the Will is that
of another's intention and not the testator's.
If the challenger is able to raise evidence of suspicious
circumstances that satisfies their burden of proof, the propounder
of the Will must prove testamentary capacity on a balance of
probabilities or rebut the evidence of coercion or fraud. Whether
the testator has the necessary mental capacity to make a Will is a
question of fact to be determined by the trial judge in all the
circumstances. The testamentary wishes of the testator must be the
product of a sound and disposing mind. A "disposing mind and
memory" is one able to comprehend, of its own initiative and
volition, the essential elements of will-making, property, objects,
just claims to consider, revocation of existing dispositions, and
the like. Grounds that could be looked to in order to establish
testamentary capacity are the family background and medical
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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