Does a judge have the power to overturn the presumption of testamentary capacity?
British Columbia, Canada
The following excerpt is from Wilton v. Koestlmaier, 2019 BCCA 262 (CanLII):
A judge’s decision to dislodge the presumption of testamentary capacity based on circumstances surrounding the drafting and execution of a will is inextricably bound up in the judge’s appreciation of the facts. Accordingly, whether the circumstances surrounding the making of a will are sufficiently suspicious to rebut the presumption of testamentary capacity is a question of mixed fact and law subject to deferential review on a standard of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 at paras. 26–28.
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