A recent Ontario decision demonstrates the changing nature of the burden of proof at various that may occur in a will challenge application. 

Roe v Roe et al., 2022 ONSC 5821

The Applicant, in this case, challenged his mother’s Last Will on the basis of a lack of capacity.  The deceased executed a Will in 2001 to gift her assets to each of her four sons.  In 2005, however, the deceased executed her Last Will to remove the Applicant as a beneficiary.  The Applicant alleged that his mother lacked testamentary capacity and that she was unduly influenced by his brother Rick, one of the Respondents. 

In its analysis, the Court stated that as the propounders of the Will, being the Respondents, had the initial burden of establishing due execution, knowledge, approval and testamentary capacity.  This was successfully proven by the Respondents and a rebuttable presumption that the deceased knew and approved of her will was established.

To rebut this presumption it is necessary to “raise an issue or excite the suspicion of the court” as it relates to testamentary capacity.  The Applicant was successful in raising this suspicion because his mother’s Last Will was executed only a few months prior to the deceased’s diagnosis of early Alzheimer’s.  

This, rebuttal, in turn, shifted the burden of proof back to the Respondents who had to establish on a balance of probabilities, that the deceased had the capacity to execute the will.  The Respondents were successful, disproving the Applicant’s contention that their mother was suffering from insane delusions and that she did not understood the assets of her estate.

With mental capacity established, the last chance for the Applicant was to prove that their mother had been unduly influenced by Rick.  Although Rick had been living with his mother, and other evidence suggesting that he had a strong degree of control over her was established, the Court was not convinced that she had been unduly influenced.  Having failed to provide sufficient evidence to successfully prove undue influence, the will challenge was dismissed.