In light of the recent case law from the British Columbia Supreme Court, there has been a trend regarding challenging a Will based on the concept of capacity (whether the Will-Maker understood what they were doing) and suspicious circumstances on the Will-Maker by a beneficiary.
This article focuses on the capacity to make a Will, but in terms of presumptions that the Will is valid, and how that presumption is challenged.
Looking first at the case of Grace Estate, 2022 BCSC 1283, the court was required to reconsider its previous decision about the “presumption of due execution;” namely when it is presumed that the Will-Maker had the necessary capacity to make the Will. By way of background, when the matter was first decided on April 26th, 2020, the court held
“At para. 59 of the Decision, I held that “the evidence before the Court is not sufficient to prove that the Will was read by or to Ms. Grace.” I held at para. 60 that meant “the propounder does not have the benefit of the presumption of testamentary capacity, and must prove both that she had capacity, and knew and approved of the contents of the Will.” At para. 61, I held that Ms. Paff had not established suspicious circumstances. I concluded at para. 62:
 Despite the absence of suspicious circumstances, I conclude that this application must be referred to the trial list for proof in solemn form of the Will. That is solely because the propounder has failed, on the evidence before the Court, to prove that Ms. Grace read the Will or had the Will read to her. In the resulting absence of the benefit of the presumption of testamentary capacity, the propounder must prove on a balance of probabilities that Ms. Grace had testamentary capacity and that she had knowledge of and approved of the contents of the will.
Unfortunately, it was discovered after the judgement was given, that there was binding case law that should have been followed, and the father of the deceased was now asking the court to reconsider its decision. This application to reconsider was opposed, and the court does an excellent job in analyzing what is necessary for an “Application for Reconsideration” to be successful. While it is worth a read for that aspect alone, that is not the focus of this blog.
On reconsideration, it was brought to the Court’s attention the case law of Yen Estate v. Chan, 2013 BCCA 423, which stands for “the proposition that the presumption of due execution applies where the evidence establishes that the testator signed the Will in accordance with the requisite formalities.”
As such, where a Will can be shown to meet the following requirements:
- in writing;
- signed at its end by the Will-Maker, or the signature at the end must be acknowledged by the Will-Maker as the Will-Maker’s signature, in the presence of 2 or more witnesses present at the same time; and
- signed by 2 or more of the witnesses in the presence of the Will-Maker.
Then the Will-Maker was presumed to have the capacity, and that the Will is valid. It is now up to those challenging that Will to rebut/disprove by way of suspicious circumstances surrounding the making of the Will.
As a refresher, the basic concepts for whether someone has capacity are found in the Banks v. Goodfellow (1870), LR 5 QB 549 (WL Can), 39 LJ Reports (NS) (Common Law, 1870) 237 (HeinOnline) case:
- understood they were making a Will and its effects;
- understood what property they had and who was going to receive upon their death;
- was able to comprehend and appreciate the claims to which he or she ought to give effect; and
- had no disorder of the mind or insane delusion that influenced his or her making of the Will.
The result is that when challenging the validity of a Will based on the Will-Maker’s capacity to understand and appreciate what they are doing, there is a presumption that if the Will meets certain requirements, it was made with the appropriate capacity. Those that are challenging the Will have to rebut that presumption.
Raise a specific and focused suspicion
This leads to the second aspect of this post, and the case law of Jung Estate v. Jung Estate, 2022 BCSC 1298, which addresses how to rebut the presumption of testamentary capacity. It was alleged that one Son (now the executor of the suspicious Will) unduly influenced the mother about when she made her most recent Will. The other Son and his wife claimed that there were suspicious circumstances surrounding this new Will, and as such, a previous Will should be used when dealing with the deceased’s estate. In doing so, the court focused on whether the evidence raises a specific and focused suspicion about the circumstances of the Will.
The court follows the same sort of reasoning as done in Grace and notes:
“When a Will is executed in accordance with the statutory formalities after having been read by or to the testator, who appeared to understand it, the propounder is aided by a rebuttable presumption that the Will-Maker possessed the requisite knowledge and approval, and testamentary capacity: Vout v. Hay,  2 S.C.R. 876 at para. 26 [Vout]; Laszlo v. Lawton, 2013 BCSC 305 at para. 202 [Laszlo]. In such circumstances the testamentary capacity of Ms. Jung, and her knowledge and approval of the contents of the Will, are presumed.”
The court then elaborates on this concept of suspicious circumstances, by explaining:
“Suspicious circumstances must raise what has been described as a “specific and focused suspicion”; a “general miasma of suspicion that something unsavoury may have occurred” is not sufficient: Leung at para. 32; citing Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.). Such suspicions must be “well grounded” and will generally relate to circumstances (1) surrounding the preparation and execution of the Will, (2) calling into question the capacity of the Will-Maker, or (3) tending to show that the free will of the Will-Maker was overborne by acts of coercion or fraud: Vout at para. 25; Allart Estate at para. 32. There is no checklist of suspicious circumstances, but one commonly occurring theme is where a beneficiary is instrumental in the preparation of the Will (especially where they stand in a fiduciary position to the testator): Laszlo at para. 207.”
Essentially the court wants evidence that is credible and reliable surrounding the making of the Will, what sort of capacity the Will-Maker had (despite it being presumed, it still can be challenged), and that the Will-Maker did have not a free choice in the matter. Again, a presumption of capacity does not mean capacity is accepted to be true, it just means it has to be challenged for the court to consider it not true; the one challenging must convince the court of it.
When presenting this evidence, the court will assess it based on the idea of “The standard of proof is a balance of probabilities; however the case law makes clear that the evidence is to be scrutinized in accordance with the gravity of the suspicions raised.” This means that the more serious the allegation made by the one challenging the Will, the more credible and reliable evidence will need to be presented to the court.
Ultimately, the court held that there was suspicious circumstance noting that the fact the son/executor stopped communicating with the other beneficiaries despite repeated requests for information, the son/executor was not honouring the mother’s power of attorney, and made secret plans for the mother to see an estate planner.
The legal concepts are challenging for those defending a Will, or those challenging the fairness of a Will. As always, LK Law is here to help guide you through these difficult circumstances. If you are in this position and need help, please contact Scott Somers or any member of the LK Law Estate Litigation team to help you better understand your options, and receive fair treatment.
Lawyer | Estate Litigation
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.