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In order for a will to be deemed valid, it must be duly executed, and the will-writer must have knowledge and approval of the will as well as having testamentary capacity at the time of it’s drafting. In BC, lack of knowledge or approval of a will is grounds for ruling the will invalid. There is a presumption that in a duly executed will- a will which has been drafted to meet all formal legal requirements- the will-writer had knowledge and approval of the will. When disagreements arise people can be left wondering, what exactly does knowledge and approval of a will entail?
Essentially, the will-writer must understand the terms of the will, agreeing that the terms are what they wish to express in the document, and they must know what they are signing. The will-writer must understand the general nature of what they are giving away. These are mandatory requirements for a valid will in BC. Some circumstances that may indicate the will-writer did not have the proper knowledge and approval of their will include:
In BC, there is a presumption of validity for will-writers. This means that people challenging a will carry the burden of proving this presumption wrong, and hence that the will in question is invalid. However, the burden of proof can be passed on to the defendant (the person defending the will) if the will-writer is shown to have been unduly influenced or otherwise not aware of the terms of the will at the time it was written, or if it can be established that the document was formed under other suspicious circumstances. Suspicious circumstances are circumstances which make it questionable as to whether the will accurately expresses the mind of the will-writer.
When a suspicious circumstance arises, the defendant must prove on a balance of probabilities that the will-writer understood and approved of their will. This means that the defendant must demonstrate that there is at least 51% likelihood, based on the evidence available, that the will-writer understood and approved of the terms in their will, and they were not under undue influence. If the defendant can prove this, the will can be ruled valid and the challenge may be dismissed.
A common example of a client who may lack knowledge and approval of their will is an elderly, recent immigrant to Canada who is not fluent in English, or struggles with translation of legal language. When their will is prepared by a lawyer, they may not be fully aware of or understand the meaning of the legal terms in the will, or how it will be executed after their death. Regardless, they proceed with the process and sign the will when it has not been written exactly as they intended. A family member later chooses to challenge this will, bringing up the possible impact of the language barrier on the will-writer’s understanding of the document. The burden of proof is then on the executor of the will, not the challenging party, to prove that the will-writer understood and approved of the document regardless of the language barrier. Another important examples arises where the will-writer does not understand the nature and extent of property they are giving away.
While in some cases it’s clear whether or not the will-writer understood and approved of their will, that is not always the case. There is no clear-cut definition for knowledge and approval, and it can be up to the defendant to prove the validity of the will in cases of suspicious circumstance. The situation’s circumstances, the will-writer’s previous wills, and even their behaviour and medical history can play an important role in determining to what extent knowledge and approval can be established.
If you believe that you were wronged by a will, you may be able to challenge the will due to a lack of knowledge and approval. Contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.