Who Must Prove Capacity in a Will Challenge in British Columbia?

When someone challenges a will on the ground that the will-maker lacked mental capacity, one of the first questions is who has to prove what. The answer affects how a case is built, what evidence matters and how much risk each side carries.

This article explains the general approach in British Columbia, including how the burden can shift, how undue influence is treated differently, and where these questions get decided. Every case turns on its own facts, so a lawyer can confirm how this applies to your situation.

This article covers the law of British Columbia.

What the statute says about capacity

Under the Wills, Estates and Succession Act (WESA), s. 36(1), a person who is 16 or older and mentally capable of doing so may make a will. A will made by a person under 16 is not valid, and age is separate from capacity, so an adult must still be mentally capable.

Section 36 sets the requirement of being mentally capable but does not define the test. The test comes from case law, which BC courts apply together with s. 36. Banks v Goodfellow (1870) is described as the leading authority on testamentary capacity and is still applied.

Who carries the burden, and how it can shift

In general terms, a will is presumed to have been made with capacity, and with knowledge and approval of its contents. Suspicious circumstances can change that starting point.

In Vout v. Hay (Supreme Court of Canada, 1995), the Court held that where suspicious circumstances relate to mental capacity, the person propounding the will reassumes the legal burden of establishing testamentary capacity. In practice, that means the person defending the will has to prove capacity.

The shift does not make the standard harder. Suspicious circumstances do not raise the standard of proof: the evidence is scrutinized in accordance with the gravity of the suspicion, and the standard remains the balance of probabilities.

• Without suspicious circumstances, the presumption of capacity generally applies.
• With suspicious circumstances about capacity, the legal burden returns to the person defending the will.
• In either case, the standard is the balance of probabilities, with closer scrutiny as the suspicion becomes more serious.

Undue influence and fraud are different

Suspicious circumstances, even if they raise a suspicion of fraud or undue influence, do no more than rebut the presumption of capacity and of knowledge and approval. A person alleging undue influence or fraud generally still has to prove it, except where WESA s. 52 shifts the onus.

Section 52 applies where someone claims a will resulted from undue influence and shows the other person was in a position of potential dependence or domination. The party defending the will then has the onus of proving that no undue influence was exercised. The challenger carries the first step: showing that position and that it was used to influence the will. Without that showing, the ordinary rule applies and the challenger bears the burden of proof.

Where these questions get decided

A formal challenge to validity is made by applying to the Supreme Court for an order proving the will in solemn form under Rule 25-15, starting a petition if no existing proceeding fits. This is where capacity, undue influence and knowledge-and-approval questions are decided.

Formal requirements are a separate question from capacity. A will must be in writing and signed in front of two or more witnesses, as set out in WESA s. 37(1). The court can, in some cases, order a document to be effective as a will despite not complying with the Act under s. 58, but that is a cure for formal defects, not for lack of capacity.

WESA applies only to deaths after it came into force, and wills for earlier deaths fall under the older rules. A lawyer can confirm which law governs a particular estate.

Keeping the issue open and next steps

A person who receives notice of a probate application may oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10. Filing one prevents a grant from being issued before the person can apply for an order requiring security. The applicant must wait 21 days after giving notice before applying for probate, which gives interested people time to act.

After a grant, the personal representative must not distribute the estate within 210 days, except by court order, which leaves a window to act. Timing rules for validity challenges can be complicated, and the 180-day limit in s. 61 applies to wills variation claims, not to validity challenges. Confirm the deadline that applies to you promptly.

• Gather the will, any earlier wills and the dates they were signed.
• Note who was involved in the will's preparation and signing.
• Collect medical and other records that speak to the will-maker's condition.
• Check whether a probate notice has been received and whether a grant has issued.
• Speak to a lawyer early about deadlines and whether to file a notice of dispute.

Frequently asked questions