When a will is challenged, the attacker may be able to create doubt as to that instrument’s validity by raising suspicious circumstances. This subject is explored in some depth in the Supreme Court of Canada’s seminal decision, Vout v Hay, 1995 CanLII 105. Therein, the Court affirmed that it is not necessary to meet a standard higher than the ordinary civil standard in order to probate a will where suspicious circumstances are established.
While Vout was decided almost 30 years ago now, there still appears to be some confusion as to the standard of proof that must be met in order to establish suspicious circumstances. Writing on behalf of the Court in Vout, Justice Sopinka held that the burden on those attacking the will “can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity.” (emphasis added).
Despite the fact that the Supreme Court did not indicate that suspicious circumstances must be established on the balance of probabilities, a few recent cases have imposed this burden of proof on will challengers. For example, in Beimler v Kendall, 2017 ABCA 117, the Alberta Court of Appeal held that in order to have a grant of probate set aside on the basis of incapacity, the parties challenging the will “were required to establish on a balance of probabilities that there were suspicious circumstances surrounding the preparation of the will, [or] the capacity of the testator.” The Superior Court of Justice made a similar pronouncement in Krolewski v Moniz, 2020 ONSC 53, holding that in order to rebut the presumption that the testator knew and approved of the contents of his will and had testamentary capacity, the applicants had to “prove, on the balance of probabilities, the presence of suspicious circumstances.” It is interesting to note that both of these cases were determined summarily, rather than through a trial, and that in both cases the court did not elaborate as to why suspicious circumstances had to be established on the balance of probabilities. There also has been no opportunity for a higher court to address this point, as neither decision was appealed.
Going forward, there should be less confusion as to the burden of proof applicable to suspicious circumstances in light of the latest pronouncement on point by the Manitoba Court of Appeal in Drewniak v. Smith, 2024 MBCA 86. The court expressly holds in this case that “[s]uspicious circumstances need not be established on a balance of probabilities,” relying on the Supreme Court’s decision in Vout v. Hay and Ontario case law, including Justice Cullity’s decisions in Scott v Cousins (2001), 37 E.T.R. (2d) 113 and Banton v Banton, 1998 CanLII 14926. The burden of proof applicable to suspicious circumstances was a live issue in Drewniak because the Court of King’s Bench held in the decision under appeal that the standard of proof applicable to both mental capacity and suspicious circumstances was the balance of probabilities.
While this case focused on the validity of a power of attorney rather than a will, it is an invaluable resource for wills and estates lawyers in light of the Court of Appeal’s extensive discussion of wills and estates case law due to the fact that the doctrine of suspicious circumstances has its historical origins in probate proceedings. In discussing the burden of proof applicable to suspicious circumstances, the Court of Appeal explained a salient principle that is not often addressed – the difference between the persuasive legal burden and the evidential burden.As noted by the Court of Appeal:
“[25] The first sense in which “burden of proof” is used is in reference to the persuasive legal burden, which is the onus to prove certain facts on the civil standard of the balance of probabilities. If the person with the persuasive legal burden on an issue fails to convince the trier of fact to a balance of probabilities, that person will lose on the issue. Substantive law governs who has the persuasive legal burden …
[26] The other sense in which “burden of proof” is used is in respect of the evidential burden … The evidential burden is described as “the responsibility to insure that there is sufficient evidence of the existence or non-existence of a fact or of an issue on the record to pass the threshold test for that particular fact or issue to be considered by the fact‑finder” … The evidential burden is, in other words, a burden of adducing or pointing to evidence. It is not measured on the higher standard of proof on a balance of probabilities.”
Next, the Court discussed the Supreme Court’s decision in Vout v. Hay, noting that when a will is attacked on the basis of lack of knowledge and approval, or lack of capacity, only an evidential burden is placed on the challenger “to point to some evidence that, if accepted, would establish those facts,” such as suspicious circumstances surrounding the origin of the will. The Court of Appeal concludes by noting that “the persuasive legal burden to prove the validity of a Will never shifts from the propounder,” and that a party attacking the will only needs to satisfy the evidential burden to overcome the evidentiary presumption arising from due execution of a will.
Given the Manitoba Court of Appeal’s detailed analysis in Drewniak, this decision ought to be a useful precedent for Ontario lawyers with respect to the burden of proof applicable to suspicious circumstances, particularly given the court’s reliance on Ontario caselaw.
Thank you for reading, and have a great day!
Suzana.