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Invalid Wills: Suspicious Circumstances And Why They Are Important

Invalid Wills: Suspicious Circumstances and Why They are Important

In BC, a will can be challenged in court if it is believed to be invalid or unfair. A will is presumed to be valid if it meets the formal requirements for the signing of a will. These requirements are:

  • The will must be in writing;
  • The will must be signed at the end by the will-maker, and;
  • The signing of the will must be properly witnessed.

The will-writer must have been aware and in approval of the will’s contents, and have had the testamentary capacity to create the will at the time of it’s writing. Testamentary capacity describes a will-writer’s depth of understanding of what their will does, knowing how they want their assets to be distributed, and being in a mental state which allows them to make decisions freely. Sometimes, it can be uncertain whether the will-writer had the mental capacity to create a will at the time it was written, such as when the will was created while in a state of terminal illness.

What are Suspicious Circumstances?

Suspicious circumstances are important because they threaten the presumption the will is valid. Suspicious circumstances are considered by the courts as circumstances which lead to a suspicion the will-writer had full mental capacity, was in approval of the contents of the will, and had to freedom and ability to decide to sign the will (was not under undue influence). Claims disputing the validity of a will due to suspicious circumstances can be brought before the courts if a claimant has reason to believe that the circumstances led to the creation of an invalid will. The fact that there were suspicious circumstances during the will-writing process is not enough to successfully challenge a will – the circumstance in question has to have impacted the will-writing process enough to establish that the will does not accurately express the wishes of the will-maker. An example is someone who changes their will while in the hospital with a terminal illness. It could be suspicious that they are making sudden changes to their will in this mental state; however, they could still have clear testamentary capacity and a full understanding of the will regardless of the circumstances. This could be ruled a suspicious circumstance that isn’t grounds for invalidating the will.

The doctrine of suspicious circumstances in BC is designed to ensure that will-makers have acted freely and voluntarily in their will-making process, and to prevent the enforcement of legally invalid wills. When a will is being written, the will-maker’s lawyer is responsible for determining whether the will-maker had the mental capacity to distribute their estate in their will. Because of this, in court, there is a presumption of testamentary capacity unless there is evidence to suggest otherwise.

Why Suspicious Circumstances are Important

Suspicious circumstances can pass the burden of proof to the defendant.

The presumption a will is valid can be rebutted by the existence of suspicious circumstances. The burden is initially on the person raising the suspicious circumstances, however, if the challenger can establish that suspicious circumstances interfered with the making of the will on a balance of probabilities – a likelihood greater than 50% – the burden will shift to the person propounding the will (the person asserting it is valid) to prove that the suspicious circumstance do not invalidate the will. This can include proving the will-writer had testamentary capacity, the will-writer knew of and approved of the contents of the will, or that there was no interference through fraud or undue influence during the will-writing process.

In short, the existing presumption of validity is rebutted when suspicious circumstances arise. The defendant, usually the executor of the will, rebuts 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.

When Circumstances are Ruled Suspicious

As described in the Supreme Court of Canada’s judgement in Vout v. Hay (1995), suspicious circumstances can be raised by:

  1. Circumstances surrounding the preparation of the will,
  2. Circumstances tending to call into question the capacity of the testator, or
  3. Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

Some scenarios which can provide evidence of suspicious circumstances during the creation of a will include:

  • Mental or physical deterioration of the will-writer,
  • Sudden changes to a will near the end of the will-writer’s life,
  • Sudden changes to a will which appear inconsistent with how the will-writer used to behave,
  • Significant involvement from beneficiaries during the will-writing process,
  • Gifts given to people who may have influenced the will-writer or to people which do not have a long-standing close relationship with the will-writer,
  • Recent husband or wife inheriting a majority of the estate,
  • Episodes of depression, anxiety, or drug abuse, and/or;
  • Significant dependency on a person who becomes a beneficiary;
  • Serious illnesses at the time of the will-writing.

This is a non-exhaustive list of suspicious circumstances that can arise during will-writing. Depending on the situation and the person, circumstances can seem suspicious nearly anywhere. It’s up to the appellant to show that a suspicious circumstance interfered with the will-writing process – making the will invalid. From there, the defendant must prove the validity of the will.

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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