Proving a Will in Solemn Form: Latest Supreme Court Decision Affirms Legal Test

In Bhalla Estate, 2017 BCSC 1867, a testator who did not speak English and was unable to read or write in any language executed her will on July 21, 2008 with the assistance of a lawyer and an unidentified translator. She appointed one of her three children as the executrix and left the entire estate to her granddaughter, who is the daughter of the executrix.

The executrix applied to prove the will in solemn form. The other 2 children opposed the application on the basis that they alleged the testator the will was not properly executed pursuant to the  s. 4 of the Wills Act, R.S.B.C. 1996 (the legislation in force at the time), that the testator lacked capacity and that are suspicious circumstances surrounding the creation of the will.

In Leung v. Chang, 2013 BCSC 976, Madam Justice Dardi set out a concise framework with of the principles with respect to the burden of proof in litigation regarding contested wills.

[26]        In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.

[27]        In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton2013 BCSC 305(CanLII) at para. 185Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier1944 CanLII 1 (SCC)[1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field2001 BCCA 267 (CanLII) at para. 51Laszlo at para. 197.

[28]        In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.

[29]        This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

            (i)         surrounding the preparation of the will;

         (ii)         tending to call into question the capacity of the will-maker; or

         (iii)         tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30]        If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant2007 BCSC 1192 (CanLII) at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[31]        In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.

[32]        In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz2009 BCCA 539(CanLII) at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 1989 CanLII 2923 (BC CA)61 D.L.R. (4th) 409 at 425 (B.C.C.A.).

[33]        The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207:

Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature.  There is no checklist of circumstantial factors that will invariably fit the classification.  Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.”

The remaining children relied on the fact that there was limited notes from the lawyer who prepared the will, no evidence from the translator who assisted with the preparation the will, and the fact that the other two children were disinherited in order to establish “suspicious circumstances”.

Mr. Justice Betton found that the will was properly executed in accordance with s. 4 of the Wills Act and therefore there a presumption that the deceased had testamentary capacity. He found that although there was no evidence that the translation services were provided on the date the will was signed, the lawyer’s evidence was sufficient to conclude that the deceased understood and approved the contents of her will.

Additionally, he held that Rule 25-14(8) of the Supreme Court Civil Rules provided various avenues for the two disinherited children to cross examine the lawyer on his evidence but no steps were taken. He also found no evidence that there were suspicious circumstances or undue influence. The will as proven in solemn form.

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