Suspicious Circumstances in a BC Will Challenge Explained

Suspicious circumstances is a phrase that comes up often in will disputes. It describes facts surrounding the making of a will that raise doubts about whether the will-maker truly understood and approved what it said.

This article explains how that idea works in British Columbia, how it shifts the burden, and how someone defending the will can respond. It is general information only.

This article covers the law of British Columbia.

What suspicious circumstances do

Vout v. Hay, [1995] 2 SCR 876, is the leading Canadian authority on suspicious circumstances in will disputes. What counts as suspicious depends on the facts of each case. Examples might include a beneficiary being closely involved in the signing, which is why rules about witnesses and gifts matter.

Where suspicious circumstances relate to mental capacity, the propounder of the will, meaning the person putting it forward, 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, and the standard remains the balance of probabilities.

What they do not do

Suspicious circumstances, even though they may raise a suspicion of 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.

Section 52 applies when you claim a will resulted from undue influence. You must first show that 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 party defending the will have the onus of proving that no undue influence was exercised. Without that showing, the person alleging undue influence bears the burden of proving it.

How the defender answers

A person defending a will answers by putting forward evidence on the issues raised. For capacity, that means evidence that the will-maker was mentally capable, which the Act requires under s. 36. Evidence about the signing can matter, since the will must be in writing, signed in front of two or more witnesses, and signed by them in the will-maker's presence.

• Show the formal requirements were met, including witnesses 19 or older.
• Address any gift to a witness or the witness's spouse, which is void unless the court declares otherwise.
• Ask the court to declare such a gift valid if it finds the will-maker intended it.
• If the issue is a drafting mistake, apply for rectification, since 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.

A rectification application must generally be made within 180 days of the date of the representation grant. That is separate from a challenge to validity.

How the challenge is brought

A person who receives notice of a probate application may oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10. A formal challenge to validity is made by applying for an order proving the will in solemn form under Rule 25-15. Interested persons can include beneficiaries, intestate successors and people who may bring a wills variation claim.

If you are concerned about the executor, a person with an interest in the estate may apply to remove or pass over a personal representative. Any person interested in the estate may also require the named executor to accept or renounce probate, or explain why administration should not be granted.

What to do next

• Write down the facts that worry you, with dates.
• Identify the witnesses to the signing and who else was present.
• Check whether a probate application or grant exists, and note the dates.
• Remember the 210-day bar on distribution after a grant.
• Ask a lawyer how burden of proof and limitation periods apply in your case.

A wills variation claim, which is a different claim from a validity challenge, must be commenced within 180 days from the date the representation grant is issued in British Columbia. A notice of dispute prevents a grant from being issued before the person can apply for an order requiring security. Which deadline applies to a validity challenge depends on the type of proceeding and the facts, so it is worth confirming with a lawyer early.

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