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Difference between revisions of "Making and Executing a Will (16:III)"
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Making and Executing a Will (16:III) (view source)
Revision as of 21:14, 29 August 2023
, 21:14, 29 August 2023→e) Suspicious Circumstances
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Suspicious circumstances surrounding the making of a will is not a stand-alone ground to challenge the validity of a will; however, if a challenger of a will can demonstrate that suspicious circumstances existed when the will was drafted, this may shift the burden to the propounders of the will to prove that the testator had knowledge and approved of the contents of the will when it was made. In ''[https://www.canlii.org/en/ca/scc/doc/1995/1995canlii105/1995canlii105.html?autocompleteStr=Vout%20v%20Hay%2C%20%5B1995%5D%202%20SCR%20876&autocompletePos=1 Vout v Hay]'', [1995] 2 SCR 876 at para 25 [''Vout''], the Court held that suspicious circumstance may be raised by: | Suspicious circumstances surrounding the making of a will is not a stand-alone ground to challenge the validity of a will; however, if a challenger of a will can demonstrate that suspicious circumstances existed when the will was drafted, this may shift the burden to the propounders of the will to prove that the testator had knowledge and approved of the contents of the will when it was made. In ''[https://www.canlii.org/en/ca/scc/doc/1995/1995canlii105/1995canlii105.html?autocompleteStr=Vout%20v%20Hay%2C%20%5B1995%5D%202%20SCR%20876&autocompletePos=1 Vout v Hay]'', [1995] 2 SCR 876 at para 25 [''Vout''], the Court held that suspicious circumstance may be raised by: | ||
:a) circumstances surrounding the preparation of the will, | |||
:b) circumstances tending to call into question the capacity of the testator, or | |||
:c) circumstances tending to show that the free will of the testator was overborn by acts of coercion or fraud. | |||
The Court in ''Vout'' held that where the party seeking to overturn the will can point to some evidence, that if believed would prove suspicious circumstances, the burden of proof shifts to the propounder of the will to prove on a balance of probabilities that the will-maker knew and approved of the will’s contents and had the necessary testamentary capacity. This problem is best avoided by ensuring the will is prepared by the will-maker or some independent party (e.g., a student or lawyer) and not by a beneficiary, or the spouse of a beneficiary, under the will. | The Court in ''Vout'' held that where the party seeking to overturn the will can point to some evidence, that if believed would prove suspicious circumstances, the burden of proof shifts to the propounder of the will to prove on a balance of probabilities that the will-maker knew and approved of the will’s contents and had the necessary testamentary capacity. This problem is best avoided by ensuring the will is prepared by the will-maker or some independent party (e.g., a student or lawyer) and not by a beneficiary, or the spouse of a beneficiary, under the will. | ||
