- A will-maker must be mentally capable under WESA s. 36, and where suspicious circumstances relate to capacity, the person defending the will takes back the legal burden of proving it.
- Suspicious circumstances do not raise the standard of proof, which stays the balance of probabilities, and they do not by themselves prove undue influence or fraud.
- Under WESA s. 52 the onus moves to the defender of the will only after the challenger shows a position of potential dependence or domination.
When someone challenges a will after a death, one of the first questions is who has to prove what. The answer is not the same for every allegation. Whether the will-maker was capable, and whether someone pressured them, are treated differently.
This article explains the general approach in British Columbia: how the burden shifts on capacity, how it shifts on undue influence, where these questions are decided, and what other route may exist if proof is hard to come by. Every estate is different, so a lawyer can tell you how this applies to your facts.
This article covers the law of British Columbia.
Capacity: the starting point
Under the Wills, Estates and Succession Act (WESA), s. 36(1), a person who is 16 or older and mentally capable may make a will. A will made by someone under 16 is not valid, and age is separate from capacity, so an adult still has to be mentally capable.
Section 36 sets the requirement of being mentally capable but does not itself define the test. The test comes from case law, which BC courts apply together with s. 36. Probate is meant to check that a will was made without fraud or undue influence, and a will that passes those checks is described as valid.
Suspicious circumstances and the burden on capacity
The Supreme Court of Canada's decision in Vout v. Hay is the leading Canadian authority on suspicious circumstances in will disputes. It held that where suspicious circumstances relate to mental capacity, the person who propounds the will, meaning the person defending it, reassumes the legal burden of establishing testamentary capacity.
Suspicious circumstances do not raise the standard of proof. The evidence is scrutinized in accordance with the gravity of the suspicion, but the standard remains the balance of probabilities.
Suspicious circumstances also do not prove undue influence or fraud. Even if they raise a suspicion of those things, they 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.
Undue influence and the two steps under WESA s. 52
Section 52 changes who carries the burden on undue influence, but only in stages. If a person claims a will resulted from undue influence and shows that the other person was in a position of potential dependence or domination, the party defending the will must prove that no undue influence was exercised.
The challenger therefore carries the first step. They must show the other person was in a position of potential dependence or domination over the will-maker and that this position was used to influence the will. Only then does the onus move to the defender. The government explains that this aligns undue influence in wills with undue influence in gifts made during life.
If the challenger cannot make that first showing, the ordinary rule applies and the person alleging undue influence or fraud bears the burden of proving it.
| Allegation | Who starts with the burden | When it can shift |
|---|---|---|
| Lack of capacity | The person defending the will, where suspicious circumstances relate to capacity | Not a shift for the challenger to carry; the standard stays the balance of probabilities |
| Undue influence | The challenger | Moves to the defender once potential dependence or domination is shown |
| Fraud | The person alleging it, generally | Suspicious circumstances alone do not shift it |
Where these questions are 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. This is where capacity, undue influence and knowledge-and-approval questions are decided.
Before a grant is issued, a person who receives notice of a probate application may oppose it 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. Timing matters, so speak to a lawyer promptly if you think a challenge may be needed.
A separate route: wills variation
Some people who are unhappy with a will cannot prove incapacity or undue influence. Under WESA s. 60, if a will does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may order provision out of the estate that it thinks adequate, just and equitable.
This claim does not depend on proving incapacity or influence. It has its own deadline: a wills variation proceeding must be commenced within 180 days from the date the representation grant is issued in British Columbia.
What to do next
- Write down why you doubt the will: who was involved, when it was signed, and what changed.
- Gather any documents you have, such as earlier wills, medical or care records, and messages about the will.
- Find out whether a probate application has been made and whether you received notice.
- Ask a lawyer promptly about a notice of dispute and the deadlines that may apply.
- If you are a spouse or child, ask whether a wills variation claim may also fit.
The time limit for a validity challenge depends on the facts and the type of proceeding, so confirm it with a lawyer rather than assuming one.
Frequently asked questions
Who has to prove a will-maker lacked capacity?
Where suspicious circumstances relate to mental capacity, the person defending the will takes back the legal burden of establishing capacity. The standard of proof is still the balance of probabilities.
Do suspicious circumstances prove undue influence?
No. They do no more than rebut the presumption of capacity and of knowledge and approval, and a person alleging undue influence or fraud generally still has to prove it, unless WESA s. 52 shifts the onus.
When does the burden shift under WESA s. 52?
It shifts to the defender of the will only after the challenger shows the other person was in a position of potential dependence or domination. Without that showing, the challenger must prove the undue influence.
Can I get something from the estate without proving undue influence?
A spouse or child may be able to bring a wills variation claim under WESA s. 60, which asks whether the will made adequate provision for proper maintenance and support. It must be commenced within 180 days of the grant being issued in British Columbia.
Sources
- Wills, Estates and Succession Act, SBC 2009, c. 13, s. 36(1) — bclaws.gov.bc.ca
- Vout v. Hay, 1995 CanLII 105 (SCC) — canlii.org
- BC Government: WESA Part 4 – Wills explanation — www2.gov.bc.ca
- BC Government: After a Death – Deal with wills and estates — www2.gov.bc.ca
- Supreme Court Civil Rules, B.C. Reg. 168/2009, Form P1 and Rule 25-10 — bclaws.gov.bc.ca
- BC Government: Explanation of the New Supreme Court Civil Rules (Probate), Part 25 — www2.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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