A couple of weeks ago, Jonathon Kappy and I podcasted on a recent decision of the Manitoba Court of Queen’s Bench, which raises the issues of knowledge and approval and suspicious circumstances, and which provides an effective overview of the shifting evidentiary burdens within the context of a will challenge.

As many of our readers may already be aware, if a last will and testament or other testamentary document is executed in compliance with the formal requirements (that is, it is executed by the testator, duly witnessed, and testamentary in nature), it is presumed to be valid. However, if a party challenges the validity of a will and is able to establish that its execution was surrounded by suspicious circumstances, the presumption that the will is valid not longer applies, and the burden of proving the will shifts to the person asserting the validity of the document (its propounder).  Even if suspicious circumstances cannot be established, the challenger may seek to have a will proved in solemn form by the propounder.  In order to prove a will in solemn form, the propounder need only provide basic evidence in support of the due execution of the will and the testamentary capacity of the testator.  If the Court accepts that suspicious circumstances existed at the time of the execution of the will, the evidentiary burden on the propounder can become relatively onerous.

A testamentary document surrounded by suspicious circumstances
“If a last will and testament or other testamentary document is executed in compliance with the formal requirements (that is, it is executed by the testator, duly witnessed, and testamentary in nature), it is presumed to be valid.”

In the recent Manitoba case of Garwood v. Garwood Estate, 2016 MBQB 113, 2016 CarswellMan 198, after the will had been proved in solemn form, Justice Bond reviewed the circumstances at hand in determining that they were suspicious and that the will, accordingly, needed to be proved by the propounder to be valid on a balance of probabilities.  However, the Court considered the suspiciousness of the circumstances in determining the strength of the evidence in support of the validity of the will that would be required.  Justice Bond found that, although the test for suspicious circumstances had been met (the drafting solicitor’s notes were sparse and his testimony was not found to be credible, the testator had been legally blind and incapable of reading the will herself, suggesting that she may not have had knowledge of and approved of the contents of the will, etc.), the circumstances were not so suspicious as to require the propounder to provide compelling evidence in support of the validity of the will.  The Court was satisfied that the will was valid simply on the basis of the fact that the will had been prepared by a lawyer in accordance with the testator’s instructions, none of the major beneficiaries were involved in the testator’s estate planning, and the lack of evidence supporting the allegations that the will was procured by undue influence and/or that the testator was mentally incapable at the relevant time.

Thank you for reading.

Nick Esterbauer