Suspicious Circumstances Around a Will in Ontario

Families often sense something is wrong before they can explain it. A new will appears shortly before death, a child who lives with the parent took them to the lawyer, or the main beneficiary was in the room. These can be red flags, but a red flag is not yet a legal result.

This article explains what suspicious circumstances mean in an Ontario will dispute and how they affect who has to prove what. It is general information, and the weight of any red flag depends on the full facts.

What the law calls suspicious circumstances

Suspicious circumstances are facts around the making of a will that raise real doubt about whether the person knew and approved its contents or had capacity. The Court of Appeal has said a challenger can meet their evidential burden with suspicious circumstances evidence that, if accepted, would tend to negate knowledge and approval or capacity.

The label is not a freestanding claim. It is a way of getting past the starting point, so that the person relying on the will has to answer the doubt with proof.

How the burden shifts

The party propounding a will, usually the estate trustee named in it, carries the legal burden of proving due execution, knowledge and approval of the contents, and testamentary capacity. Once a challenger raises suspicious circumstances, the legal burden reverts to the propounder. Where those circumstances raise doubt about capacity, the propounder must prove capacity on a balance of probabilities.

Undue influence works differently. If it is alleged against a will, the burden is on the party attacking the will. That is why it helps to separate the concerns: doubt about understanding is about suspicious circumstances, while pressure from another person is about undue influence.

Red flags families commonly raise

The law does not provide a fixed list, and each item below is only a prompt for gathering evidence. Whether any of them matters depends on how the court views the whole picture.

• A beneficiary helped arrange the meeting with the lawyer or was present for instructions
• The will is a sharp change from earlier wills without an explanation
• The person had memory problems, confusion or illness around the signing date
• Only one person, who benefits, can describe how the will was signed
• The person was isolated from relatives or dependent on the beneficiary for care
• The will was signed in a rush or kept secret

Proper signing is part of the picture. A court looks for two witnesses present at the same time who saw the person sign. In one decision, the judge found insufficient evidence of compliance where only one interested person's uncorroborated evidence supported execution, and also noted probable lack of capacity and suspicious circumstances.

Gifts and transfers before death

Sometimes the concern is not the will but what happened to property before death, such as a house or bank account moved into a child's name. Different rules apply. For gifts and transfers, a presumption of undue influence arises where the relationship carries potential for domination, and the recipient must then show the gift came from the giver's full, free and informed thought. Independent advice helps but is not required in every case, and corroborating evidence is needed to rebut the presumption.

A gratuitous transfer from a parent to an adult child is presumed to be held on resulting trust for the parent, and the child must rebut that by showing the parent's actual intention at the time. The same presumption has been applied to bank accounts placed in joint names with adult children, and the court weighs all the evidence of intention, including the terms of any power of attorney given to the recipient. An estate trustee has a duty to call in the estate's assets.

Timing, costs and next steps

A claim seeking only a declaration that a will is valid or invalid has no limitation period if no consequential relief is sought. Other claims generally face the basic two-year period from discovery. Because mixed claims are common, confirm which applies to you.

Costs follow the ordinary civil rules, and costs come out of the estate only where public policy considerations apply. A challenge with no evidence behind it carries real cost risk.

• List each concern with a date and who witnessed it.
• Gather medical records access information, the lawyer's name and the names of the witnesses.
• Keep copies of emails, texts and bank statements that show who handled what.
• Do not sign releases or accept distributions until you understand your rights.
• Get advice early from an estate litigation lawyer about whether a notice of objection makes sense.

Frequently asked questions