When challenging the validity of a Will, the challenge often hinges on the presence of suspicious circumstances that raise doubt about the Will’s validity. Once these raised suspicions are sufficient to “excite” the court, the burden then shifts to the individual propounding the Will in question.

The Ontario Court of Appeal’s ruling in Stekar v. Wilcox, 2017 ONCA 1010, demonstrates this legal principle. In this case, the Court upheld the trial judge’s decision to reject the Will in question and dismiss the probate application, citing the following suspicious circumstances surrounding its creation:

1. The Will in question was drafted at a time when the deceased’s mental capacity was questionable due to health issues and a recent hospitalization.
2. It included significant changes from a previous will, notably directing a sizable portion of the estate to a caregiver of only one month.
3. The Will in question was typewritten, despite the deceased lacking access to a computer or typewriter.
4. The deceased made contradictory statements about his intended beneficiaries leading up to the Will in question’s creation.

Seeing as there were clear suspicious circumstances, the burden shifted to the propounder of the Will in question to prove its validity. However, the Court found that the propounder failed to meet this burden of proof with regards to the testator’s knowledge and approval of the Will in question, and testamentary capacity for several reasons:

1. The testamentary provisions contradicted the deceased’s expressed intentions to his physician and friends in the months preceding the Will in question’s execution.
2. The previous will, handwritten by the deceased, contrasted sharply with the typewritten Will in question.
3. There was a lack of evidence regarding the instructions or preparation of the Will in question.
4. Crucially, a key witness present at the Will in question’s execution did not provide testimony.

The trial judge emphasized the serious impact of these suspicious circumstances on establishing that the deceased had knowledge and approval of the Will in question. 

It is important to note that the Court of Appeal cited MacGregor v. Martin Estate, 1965 CanLII 17 (SCC), [1965] SCR 757, where the Supreme Court of Canada outlined that the degree of proof required varies depending on the gravity of suspicion in each case. In Stekar, the Ontario Court of Appeal found that the suspicious circumstances surrounding the making of the Will in question “cried out for an explanation and for evidence that the Deceased, in fact, had knowledge of and approved the contents”.

While knowledge and approval may not always be the primary grounds for contesting a will, they remain essential considerations. Establishing suspicious circumstances can shift the burden of proof, making it more challenging to validate a Will. Consequently, careful scrutiny of the circumstances surrounding a Will’s creation is crucial in ensuring its integrity when a Will is proved.

Thank you for reading and have a great weekend!

Geoffrey