Who Has the Burden of Proof in a BC Will Capacity Dispute?

If you are questioning whether someone had the mental capacity to make their will, one of the first questions is who has to prove what. The answer is not a single rule. It changes depending on the evidence, and it is different again for undue influence.

This article explains the general framework in British Columbia in plain language. Every dispute turns on its own facts, so treat this as background for a conversation with a lawyer, not as a prediction about your case.

This article covers the law of British Columbia.

The starting point: a presumption of capacity

Under the Wills, Estates and Succession Act (WESA), a person who is 16 or older and mentally capable may make a will. Age and capacity are separate: someone over 16 still needs to be mentally capable.

The Act requires mental capability but does not itself define the test. The test comes from case law, which British Columbia courts apply together with s. 36. The leading authority is Banks v Goodfellow (1870), still applied about 150 years later.

In a will dispute, the law starts from a presumption of capacity, together with a presumption that the will-maker knew and approved the contents. Suspicious circumstances are what can rebut that starting point. Whether they are present in a particular case depends on the facts, so it is worth confirming with a lawyer.

When suspicious circumstances shift the burden

The Supreme Court of Canada 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 propounder of the will reassumes the legal burden of establishing testamentary capacity. The propounder is, in plain terms, the person putting the will forward as valid.

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. What counts as a suspicious circumstance depends on the facts, and a lawyer can tell you how courts have viewed circumstances like yours.

Suspicious circumstances that hint at 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.

Undue influence has its own burden rules

Capacity and undue influence are different grounds. Under WESA s. 52, if a person 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 has the onus of proving that no undue influence was exercised.

The challenger carries the first step: showing that the other person was in a position of potential dependence or domination and that the position was used to influence the will. Only then does the onus move to the defender. Without that showing, the ordinary rule applies and the person alleging undue influence or fraud must prove it.

Where and when the question is decided

A formal challenge to validity is brought 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.

Timing needs care. A person who receives notice of a probate application may oppose the grant by filing a notice of dispute (Form P29) under Rule 25-10. The personal representative must not distribute the estate within the 210 days following the grant, except by court order. Which deadline applies to a validity challenge depends on your situation, so confirm it with a lawyer rather than assuming. The Limitation Act has a basic 2-year period from discovery and an ultimate 15-year period, but it does not apply where another enactment sets its own limitation period, and whether it governs a validity challenge at all is something to confirm with a lawyer.

If you are a spouse or child who cannot prove incapacity or undue influence, a wills variation claim under s. 60 is a different route. It must be commenced within 180 days from the date the representation grant is issued in British Columbia.

What to do next

• Write down the timeline: when the will was signed, who was present, and what you observed around that time.
• Collect medical records, care notes, and any earlier wills you know about.
• Check whether a probate application has been made and whether a notice of dispute is still possible.
• Note the date any grant was issued, since several deadlines run from it.
• Speak with a lawyer early about which ground fits the facts and who carries the burden on each.

Frequently asked questions