What is the test for rebutting the presumption in a will?

However, the presumption can be rebutted if there are suspicious circumstances. This is discussed in para. 27 of Vout v. Hay, as follows: Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

As discussed in para. 25 of Vout v. Hay, suspicious circumstances may be raised by the following: 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.