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Suspicious Circumstances In Will-Writing: Who Has The Onus Of Proof?

Suspicious Circumstances in Will-Writing: Who has the Onus of Proof?

Claims regarding suspicious circumstances arise when a claimant has reason to believe that a will is invalid due to the circumstances under which it was written. If there is evidence that the circumstances under which the will was written interfered significantly with the will-writer’s ability to understand and approve of their will, or their freedom to decide to sign their will, the courts may decide that the will is invalid.

The doctrine of suspicious circumstances in BC is designed to ensure that testator’s have acted freely and voluntarily in their will-making process, and to prevent the enforcement of legally invalid wills.

The Onus of Proof

The onus of proof is passed to the defendant when suspicious circumstances have been established.

When a will has been duly executed and an interested party believes that the will is invalid, the onus of proof lies with the interested party (the claimant) to prove that the will is invalid. This can mean proving that the will in question wasn’t the final will written by the deceased, the writer didn’t have the testamentary capacity or free will to create the will, or the writer was unaware of the will’s contents.

If the appellant is able to prove on a balance of probabilities (to at least 51% certainty) that suspicious circumstances have impacted the validity of the will, the onus of proof is passed to the defendant (the executor, being the person seeking to show the will is valid).

The onus of proof is given to the defendant (again, typically the executor of the will) to establish that the will was valid by demonstrating that the suspicious circumstance was not relevant, or did not interfere enough to deem the will invalid. Though wills carry a presumption of validity in BC, this presumption is not extended to the defendant should suspicious circumstances arise. The defendant can rebut the suspicious circumstances claim by proving the will’s validity. In some situations, this could mean the executor must prove the will in solemn form, which is a conclusive process in front of the courts which determines if the will is valid or not.

To summarize, it is up to the person challenging the will to show that suspicious circumstances had an impact on the will-writing process – making the will invalid. After the validity of the will is disputed, the defendant has the onus of proving the validity of the will. Should the courts rule that the suspicious circumstance was not significant, the claimant will still carry the burden of proving the will is invalid.

If you were victim to unfair estate distribution and you think suspicious circumstances lead to the creation of an invalid will – contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at

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