Counsel for the defendant joins counsel for the plaintiff in relying on Vout as establishing the law concerning which party carries the burden if proof where there are suspicious circumstances surrounding the execution of a will and adopts the three examples where suspicious circumstances may be raised as described by Justice Ritchie in Re Martin; MacGregor v. Ryan, 1965 CanLII 17 (SCC),  S.C.R. 757. Counsel for the defendant goes on to give further examples where there has been said to be suspicious circumstances which mitigate against the granting of probate: 1. A beneficiary of the estate was present at the time instructions were given and/or the will was signed (not applicable here); 2. The testator was hospitalized at the time of will instructions and/or will execution or required assistance outside of the solicitor’s office (as was the case here); 3. The testator had been diagnosed with a terminal condition at the relevant times (applicable here); 4. The testator was of advanced age (not applicable here); 5. The dispositions under the will were made in favour of persons other than the testator’s family (the testator here indicated that he wished the family farm to stay in the family - here his nephews rather than his wife’s family); 6. The testator disinherited some of his immediate family (not applicable here where provision was made for his wife); 7. The testator had a history of psychiatric disturbance or suffered from defined disillusions (the defendant argues that the testator was acting under a misperception); 8 The testator suffered from impaired vision or hearing (the testator had lost the sight of one eye and was deaf in one ear following the April 17th, 1996 accident).
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