Who Has the Burden of Proof When a Will Is Challenged for Incapacity in British Columbia?

This answer covers the law of British Columbia.

In British Columbia, the starting point is that a will-maker is presumed to have been capable, but that changes if suspicious circumstances are raised. Where suspicious circumstances relate to mental capacity, the person putting the will forward takes back the legal burden of establishing testamentary capacity. Suspicious circumstances rebut the presumption of capacity.

Suspicion does not raise the standard of proof. The evidence is looked at more closely in line with how serious the suspicion is, but the standard stays the balance of probabilities. The legal requirement itself is that the will-maker be mentally capable, and the test for that comes from case law applied together with section 36 of the Wills, Estates and Succession Act.

Undue influence and fraud work differently. Suspicious circumstances only rebut the presumption, and a person alleging undue influence or fraud generally still has to prove it, unless section 52 shifts the onus. Probate is where a will is checked for fraud and undue influence. What counts as suspicious in a particular case depends on the facts, so a lawyer can confirm how this applies to you.