When a will is challenged, the propounder of that instrument may be required to prove that the testator knew and understood the will’s contents in order to obtain probate. Normally knowledge and approval are presumed when a will is properly executed, so long as there is evidence establishing that the will was either read over to or read over by the testator, and that the testator appeared to understand the will. However, that presumption will be spent if suspicious circumstances are established – then the onus will fall on the propounder of the will to prove knowledge and approval on the balance of probabilities: see Vout v Hay, 1995 CanLII 105 (SCC).
Under such circumstances, knowledge and approval is often proven by establishing that the testator was aware of the value of their assets or the magnitude of their estate, relying on evidence provided by the lawyer who took the testator’s instructions and drafted their final will. If the drafting lawyer did not ask the testator about the value of their assets or the size of the estate, however, it is still possible to establish knowledge and approval of a will using different evidence, as demonstrated by the Manitoba Court of Appeal’s recent decision in Small Estate (Re), 2025 MBCA 63.
In this case, the testator left more than half of her estate, which was valued at approximately $2.1 million, to a friend, and also named him as the executor of her estate. Several of her surviving relatives challenged her final will and codicil, alleging suspicious circumstances and that the testator did not know and approve of these instruments. While the testator had always handled her family’s finances and banking, and even managed her own investments, there was no direct evidence before the court confirming that the testator knew the value of her assets and her estate. The notes of the lawyers who had prepared the testator’s final will and codicil did not indicate that the testator had spoken about the value of her assets.
In the trial decision, reported at Black-Donaldson v The Estate of Helen Small, 2024 MBKB 56, the Court of King’s Bench found that the presumption of knowledge and approval had been displaced by suspicious circumstances, and set the will aside on the basis that the executor had failed to establish knowledge and approval.
Despite the lack of evidence from the drafting lawyers, the trial decision was overturned on appeal. While the Manitoba Court of Appeal noted that “the lawyers ought to have done a better job documenting the instructions they received,” the court found that the executor had established knowledge and approval of the final will and codicil using other evidence.
There are a number of valuable lessons that can be taken from this decision:
- When evaluating knowledge and approval of a will, the focus ultimately ought to be on whether the will reflected the testator’s true testamentary intentions and whether the testator knew and understood the will, as compared to focusing too much on the testator’s knowledge and approval of their assets and the relative value of the testamentary gifts given through the will.
- If a drafting lawyer’s notes fail to expressly address the testator’s knowledge of the value of their assets, the court will be required to examine other evidence to determine whether knowledge and approval has been established. For example, in Small Estate, knowledge and approval was proven through evidence from:
- the executor and significant beneficiary of the will;
- other witnesses who could speak to the testator’s management of her assets; and
- evidence from the drafting lawyers regarding their interactions with the testator.
- It is incumbent on the court to consider all evidence when determining whether knowledge and approval has been proven by the propounder of the will. Failure to do so may constitute a palpable and overriding error, meriting appellate relief.
- Evidence provided by a significant beneficiary should not be discounted or minimized simply because that beneficiary stood to benefit under the will. If that beneficiary’s evidence is not challenged by an opposing party, a trial judge will either have to assess the evidence or provide reasons to give it less weight.
- It may be inappropriate to decide whether the testator knew and approved of their final will by comparing it to a previous will, particularly if there has been a material change in circumstance before the final will was drafted.
Thank you for reading, and have a wonderful rest of your day.
Suzana.