Lack of Knowledge and Approval of a Will in British Columbia

You may suspect that your relative signed a will without really understanding what it said, or without meaning it to read the way it does. That is a different worry from asking whether they were mentally capable, and the difference changes how a dispute is argued.

This article explains, in general terms, how a knowledge and approval concern fits alongside capacity and undue influence in British Columbia. It is not advice on your situation. Facts, medical records and timing matter a great deal, so a lawyer should look at the details.

This article covers the law of British Columbia.

Capacity and knowledge and approval are different questions

Under the Wills, Estates and Succession Act (WESA), a person who is 16 or older and mentally capable may make a will. The statute requires mental capability but does not itself define the test, which comes from case law that British Columbia courts apply together with the section. Banks v Goodfellow (1870) is described as the leading authority on testamentary capacity.

Knowledge and approval is a separate idea. In plain words, it asks whether the will-maker truly knew what the document contained and meant it to be their will. A person can be capable in general and still sign a document that does not reflect what they understood or intended.

Who has to prove what

Vout v. Hay is the leading Supreme Court of Canada decision on suspicious circumstances in will disputes. It held that where suspicious circumstances relate to mental capacity, the person propounding the will takes back the legal burden of establishing testamentary capacity.

Suspicious circumstances do not raise the standard of proof. The evidence is scrutinized according to the gravity of the suspicion, and the standard stays the balance of probabilities. They also do no more than rebut the presumption of capacity and of knowledge and approval, even if they hint at fraud or undue influence.

That last point matters. A person alleging undue influence or fraud generally still has to prove it, except where WESA s. 52 shifts the onus. Under s. 52, the challenger must first show the other person was in a position of potential dependence or domination, and only then must the defender prove no undue influence was exercised.

Facts people often raise

Whether something counts as a real warning sign depends on the whole picture. These are things families commonly look into, not a legal test:

• Who arranged the will, and who was present when instructions were given.
• Whether the will-maker could read the document, or had it read or explained to them.
• Whether the gifts match what the will-maker said they wanted, or depart sharply from earlier wills.
• Who benefits and whether they were involved in the preparation.
• The will-maker's health and any records from around the time of signing.

Gather what you can, but avoid confronting people or removing documents. A lawyer can help decide which facts are likely to matter.

When the problem is a drafting mistake

Sometimes the will-maker was capable and the will does not say what they meant because of an error. The court may rectify a will that fails to carry out the will-maker's intentions because of an accidental slip or omission, a misunderstanding of instructions, or a failure to carry out instructions. Extrinsic evidence, including evidence of intent, is admissible on that application.

There is a deadline. A rectification application must generally be made within 180 days of the date of the representation grant. This is separate from a challenge to the will's validity. Outside rectification, a will-maker's own statements of intent are generally not admissible to interpret a will, with exceptions the Act lists.

Rectification is also different from a court order that excuses a formal defect. That power can make a document effective as a will despite non-compliance with the Act, but it is a cure for formal defects, not for lack of capacity.

What to do next

• Find out whether a probate application has been made or a grant has issued, because deadlines may already be running.
• Note the 180-day limits: rectification runs from the grant, and a wills variation claim must be started within 180 days of the grant.
• Consider whether you can file a notice of dispute (Form P29) after receiving notice of a probate application.
• Collect the will, earlier wills, correspondence and medical or care records you have lawful access to.
• Write down names of people who saw the will being prepared or signed.
• Speak with a wills and estates lawyer early.

If you are a spouse or child who cannot prove a validity ground, WESA s. 60 allows the court to order adequate provision if the will does not make adequate provision for proper maintenance and support.

Frequently asked questions