What are the rules of engagement for a plaintiff who alleges undue influence in a will?
Ontario, Canada
The following excerpt is from Tokarsky v. Tokarsky, 2004 CanLII 12279 (ON SC):
The rules of engagement do not vary depending upon who is named “plaintiff” and who is named “defendant”. The onus is determined by the issue. The propounder of the will has the benefit of a rebuttable presumption in favour of testamentary capacity with respect to the testator/testatrix. On the other hand, she/he who alleges undue influence has the onus or burden of proving the allegation. See: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876.
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