- WESA expressly shifts the burden to the person defending a will or gift once a position of potential dependence or domination is shown.
- Other circumstances that raise doubts about a will are weighed by the court on the evidence, and how they affect the burden is a case-law question for a lawyer to confirm.
- A notice of dispute can pause probate while the concern is investigated.
Sometimes a will is not obviously invalid, but the way it came about feels wrong. The will-maker may have been unwell, isolated, or heavily reliant on one person who then benefited. Lawyers describe facts like these as suspicious circumstances.
This article explains what the term means in plain words, how the burden of proof can shift onto the person defending a will, and what to do if you have concerns. It stays with the rules written in British Columbia's legislation and flags where case law, which a lawyer should confirm, fills the gaps.
This article covers the law of British Columbia.
What suspicious circumstances means
In plain words, suspicious circumstances are facts around the making of a will that raise real doubts about whether it reflects the will-maker's genuine, informed wishes. They are best understood as warning signs around how a will was made, and those signs may lead to a challenge based on capacity, undue influence or the signing formalities, which are grounds set out in the Wills, Estates and Succession Act (WESA).
Examples people often worry about include a sudden change of beneficiary, a beneficiary who arranged the will, secrecy around the signing, or a will-maker who was ill or dependent. None of these proves anything by itself.
How the burden of proof can shift
One place where the Wills, Estates and Succession Act (WESA) clearly deals with who must prove what is section 52. If the person claiming undue influence shows that another person was in a position where the potential for dependence or domination of the will-maker was present, the party defending the will or gift then has the onus of proving that no undue influence was exercised.
How those rules work is a matter of case law, and a lawyer can tell you how they apply to your facts.
Grounds that suspicious facts often lead to
| Concern | What the legislation says |
|---|---|
| Lack of capacity | A person must be 16 or older and mentally capable of making a will, and a will made without capacity can be challenged as invalid. |
| Signing formalities | A will must be in writing and signed at its end by the will-maker, or the signature acknowledged, before 2 or more witnesses present at the same time, and signed by 2 or more of them in the will-maker's presence. |
| Undue influence | Once a position of potential dependence or domination is shown, the party defending the will or gift must prove no undue influence was exercised. |
A will that fails the formalities can still be upheld, because the court may order that a record or document is fully effective as a will.
Evidence and steps to take
- Collect medical and care records from around the time the will was made
- Find out who arranged the will, who attended the meetings and who was present at signing
- Compare the will with earlier wills and note what changed
- List people who saw the relationship and the will-maker's condition
- Keep messages, emails and notes safe
What to do next
- Search Court Services Online for probate and caveat/dispute cases using all or part of the deceased's last name.
- Consider a notice of dispute in Form P29 before the earlier of an authorization or the estate grant being issued. While it is in effect, the registrar must not issue a grant.
- Remember it stops being in effect one year after filing unless the court renews it, and it ends sooner if withdrawn, removed by the court, or the will is proved in solemn form.
- Get legal advice early about evidence and cost risk. Costs generally go to the successful party unless the court orders otherwise.
Frequently asked questions
Do suspicious circumstances automatically make a will invalid?
No. They are warning signs that may support a challenge on a recognized ground, such as lack of capacity or undue influence. The court decides on the evidence.
When does the burden shift to the person defending the will?
Under WESA section 52, it shifts once the person claiming undue influence shows another person was in a position where the potential for dependence or domination was present.
Can I pause probate while I look into my concerns?
A notice of dispute can do this. While it is in effect, the registrar must not issue an estate grant. It stops being in effect one year after it was filed unless renewed.
Is a wills variation claim the same thing?
No. Only a spouse or child can bring one, and it asks the court to order adequate provision rather than declare the will invalid. It must be started within 180 days from the date the representation grant is issued in British Columbia.
Sources
- Wills, Estates and Succession Act, SBC 2009, c 13, s 60 (BC Laws) — bclaws.gov.bc.ca
- Supreme Court Civil Rules, BC Reg 168/2009, Rule 25-10(1) (BC Laws) — bclaws.gov.bc.ca
- CSO Help – Search by Deceased Name, Government of BC — justice.gov.bc.ca
- Supreme Court Civil Rules, Rule 14-1 (BC Laws) — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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