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Will Challenge - Suspicious Circumstances to Rebut Presumption

November 23, 2021

Alberta

,

Canada

Issue

What must be established to successfully contest the probate of a will on the ground of lack of capacity and undue influence?

Conclusion

The propounder of a will has the burden of proving on a balance of probabilities that the required formalities were satisfied. If so, there is a rebuttable presumption of testamentary capacity. Someone challenging the will may raise “suspicious circumstances” to negate testamentary capacity. If suspicious circumstances are raised on the evidence, the burden of proof shifts to the propounder of the will to prove testamentary capacity on a balance of probabilities (Vout v. Hay; Arena Estate (Re))

A personal representative or propounder of a will has the legal burden with respect to proving execution, knowledge and approval, and testamentary capacity of the testator in a will. There is a two-stage process to challenge a will. First, if the presumption of testamentary capacity is triggered, this puts an evidentiary onus on the challenger to raise suspicious circumstances to rebut the presumption. Suspicious circumstances may be raised by (1) the circumstances surrounding the preparation of the will, (2) circumstances calling 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. If the challenger succeeds by establishing a genuine issue to be tried, and a trial is ordered about the issue of testamentary capacity, then the onus shifts to the propounder of the will to prove capacity. (Mawhinney v Scobie)

On proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. The presence of suspicious circumstances can rebut this presumption. (From Estate)

Where the evidence raises a genuine issue as to whether suspicious circumstances surrounded preparation of the will, the proponent of the will assumes the legal burden of establishing testamentary capacity. (Penno v. Penno; McAndrew Estate (Re))

In Bahry v. Zytaruk, the personal representative made a claim for a grant of probate. Clarke J. ruled that the deceased did not have testamentary capacity at the time that she executed her later (1997) will as she did not appreciate the consequences of the change that she was making in the disposition of her estate. Therefore, formal proof of the later (1997) will was not granted and probate was granted for an earlier (1993) will.

In McAndrew Estate (Re), Devlin J. considered which of the late Patricia McAndrew’s three wills governed that distribution of her estate. Her brother, supported by two of her children, asserted that her 2012 holograph will, was valid and should prevail. In the alternative, he advanced a 2011 will drafted with the aid of her solicitor. Her daughter Diane asserted that Ms. McAndrews lacked capacity to execute either of the latter wills and that the holograph in particular was the product of undue influence. Consequently, she asked the Court to endorse Ms. McAndrew’s original 2005 will. In 2005, the Deceased and her husband executed mirror wills, enduring powers of attorney and personal directives. In each case, the will (the “2005 Will”) named their daughter Diane as the alternate executor. Upon the death of the surviving spouse, both wills left $5000 bequests to each of Kevan, Shelagh and Christine, and the residue of the estate to Diane, making her the primary beneficiary. The Deceased's husband predeceased her. In 2011, the Deceased was diagnosed with Dementia and Diane obtained control over her affairs pursuant to an Enduring Power of Attorney. Devlin J. held that Diane had not raised sufficient suspicious circumstances to displace the presumption that the Deceased had testamentary capacity at the time she executed the 2011 Will.

Law

In Vout v. Hay, [1995] 2 SCR 876, 1995 CanLII 105 (SCC), the Supreme Court of Canada considered how suspicious circumstances affect the burden of proof. The propounder of a will has the burden of proving on a balance of probabilities that the required formalities were satisfied. If so, there is a rebuttable presumption of testamentary capacity. Someone challenging the will may raise “suspicious circumstances” to negate testamentary capacity. If suspicious circumstances are raised on the evidence, the burden of proof shifts to the propounder of the will to prove testamentary capacity on a balance of probabilities:

26 Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

27 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.

28 It might have been simpler to apply the same principles to the issue of fraud and undue influence so as to cast the legal burden onto the propounder in the presence of suspicious circumstances as to that issue. See Wright, supra, and Macdonell, Sheard and Hull on Probate Practice, supra, at p. 33. Indeed the reference in Barry v. Butlin to the will of a "free and capable" testator would have supported that view. Nevertheless, the principle has become firmly entrenched that fraud and undue influence are to be treated as an affirmative defence to be raised by those attacking the will. They, therefore, bear the legal burden of proof. No doubt this reflects the policy in favour of honouring the wishes of the testator where it is established that the formalities have been complied with, and knowledge and approval as well as testamentary capacity have been established. To disallow probate by reason of circumstances merely raising a suspicion of fraud or undue influence would tend to defeat the wishes of the testator in many cases where in fact no fraud or undue influence existed, but the propounder simply failed to discharge the legal burden. Accordingly, it has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect to fraud and undue influence remains with those attacking the will. See Craig v. Lamoureux, 1919 CanLII 416 (UK JCPC), [1920] A.C. 349; Riach v. Ferris, 1934 CanLII 13 (SCC), [1934] S.C.R. 725; Re Martin, supra.

The Alberta Court of Appeal outlined the will-challenge process in Mawhinney v Scobie, 2019 ABCA 76 (CanLII):

[31] When someone dies leaving a will, the first step is for the appointed personal representative to apply for probate in common form. After proving certain formalities, including that the will was properly executed and witnessed, the will is considered presumptively valid in the limited sense mentioned at paragraph 9 of these reasons. The personal representative is entitled to, and has an obligation to, give effect to the testator’s intentions as expressed in the will.

[32] The personal representative or propounder of a will has the legal burden with respect to proving execution, knowledge and approval, and testamentary capacity of the testator in a will. The propounder is aided by a rebuttable presumption. “Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity”: Vout at para 26.

[33] Suspicious circumstances may be raised by (1) the circumstances surrounding the preparation of the will, (2) circumstances calling 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: Vout at para 25. With respect to the first two circumstances, if those suspicious circumstances are established then the presumption of testamentary capacity is “spent” and the propounder of the will reassumes the legal burden of proving the will. With respect to the last circumstance, undue influence or coercion, neither of which are raised in this case, the legal burden always remains on the party raising them.

[34] As the Supreme Court of Canada noted in Vout, at para 27,“[t]he 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.” See also Penno v Penno, 2012 ABCA 387 at para 12, 225 ACWS (3d) 583.

[35] The discussion of burden of proof in Vout clearly contemplates a two stage process to challenge the will. First, if the presumption of testamentary capacity is triggered, this puts an evidentiary onus on the challenger to raise the suspicious circumstances to rebut the presumption. If the challenger succeeds by establishing a genuine issue to be tried, and a trial is ordered about the issue of testamentary capacity, then the onus shifts to the personal representatives to prove capacity. At each stage, the issue remains the same: did the testator have testamentary capacity? The difference is the evidentiary onus, the scope of the hearing, the nature of the evidence, the ability to determine credibility, and the nature of the relief granted: Dieno Estate v Dieno Estate, 1996 CanLII 6762 (SK QB), [1996] 10 WWR 375 at 383, 147 Sask R 14; Royal Trust Corp of Canada v Ritchie, 2007 SKCA 64 at para 5, 159 ACWS (3d) 771.

[36] In order for a beneficiary to raise suspicious circumstances in Alberta, we agree with the decision below that an application can be brought under SR 75(1)(a). If suspicious circumstances are established, the onus shifts to the personal representatives to prove knowledge and approval or testamentary capacity. The scheme under SR 75(1)(a) is permissive. It is in the discretion of the court whether to order that the will should be formally proved at trial, or some other form of hearing, although this is normally done if those challenging the will have established suspicious circumstances as described in Vout at para 27. SR 75(1)(a) guides the procedure to be followed when an application seeking formal proof of a will is advanced. To the extent that SR 75(1)(a) grants any “rights” for the purpose of paragraph 21(b) of the August Will however, they are rights of process.

In Penno v. Penno, 2012 ABCA 387 (CanLII), the Alberta Court of Appeal held that where the evidence raises a genuine issue as to whether suspicious circumstances surrounded preparation of the will, the proponent of the will assumes the legal burden of establishing testamentary capacity:

[9] In Re Quaintance Estate, 2006 ABCA 47, 380 A.R. 160 at paras. 22 and 23, the unanimous Court stated:

“While it is true that any preliminary or screening burden of proof is assessed in light of the ultimate burden of proof . . . the two burdens must not be confused.

On an application for proof in solemn form, the appropriate legal test is whether there is a ‘genuine issue to be tried’. A genuine issue is one that has arguable merit. The chambers judge erred in deciding the application before him on the basis of whether the Appellant had ‘a reasonable prospect of success’. The latter threshold would be too stringent a standard because often the knowledge of the challenger is confined to suspicious circumstances that can only be explored and amplified at examinations for discovery.”

[10] The chambers judge, in the case at bar, assessed the above recited factual underpinnings in the following terms:

“It is noteworthy that in the seminal case of Banks v. Goodfellow (1869-70) L.R. 5 QB 549, it was noted that the power to make a will is not taken away merely because the proposed maker of a will is suffering from mental unsoundness. Rather the issue is whether the mental unsoundness affects the ability of a person to make a testamentary distribution.

There is a complete absence of evidence that Lennard lacked testamentary capacity. In the result, I do not accept that his behaviour provides evidence of a suspicious circumstance.”

(2012 ABQB 183 at paras. 40-41)

[11] Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 at paras. 26 and 27, explains how “well-grounded suspicion” is properly addressed:

“... The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

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.”

[12] At this stage of the proceedings, the evidentiary burden spoken of in Vout v. Hay on those attacking the will is met. The evidence in this case raises a genuine issue as to whether there are suspicious circumstances surrounding the preparation of the will, sufficient to dictate that the proponent of the will assume at a trial the legal burden of establishing testamentary capacity.

In Arena Estate (Re), 2020 ABQB 206 (CanLII), Poelman J. outlined the shifting burdens of proof applicable to proving wills and testamentary capacity set out in Vout v. Hay as follows:

D. Onus of Proof

[90] Petrowski v Petrowski Estate, 2009 ABQB 196 provides a helpful summary of shifting burdens of proof applicable to proving wills and testamentary capacity, based primarily on the leading authority of Vout v Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, 125 D.L.R. (4th) 431.

[91] First, the propounder of the will has the burden of proving on a balance of probabilities that the required formalities were satisfied. If so, there is a rebuttable presumption of testamentary capacity. Second, someone challenging the will may raise “suspicious circumstances” to negative testamentary capacity. If suspicious circumstances are raised on the evidence, then (and third), the burden of proof shifts to the propounder of the will to prove testamentary capacity on a balance of probabilities.

[92] Establishing suspicious circumstances involves “adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval [of the contents of the will] or testamentary capacity”: Vout, para 27. The evidence of suspicious circumstances must simply raise an issue regarding knowledge and approval or testamentary capacity, not disprove it on a balance of probabilities: Taubner v Zahn, 2012 ABQB 504, para 187.

[93] The authorities discuss three categories of suspicious circumstances: those surrounding preparing of the will, those tending to question the capacity of the testator, and those tending to show that the free will of the testator was overborne by coercion or fraud: Petrowski, para 13, referring to Vout, para 25.

In McAndrew Estate (Re), 2020 ABQB 614 (CanLII), Devlin J. considered which of the late Patricia McAndrew’s three wills governed that distribution of her estate. Her brother, supported by two of her children, asserted that her 2012 holograph will, was valid and should prevail. In the alternative, he advanced a 2011 will drafted with the aid of her solicitor. Her daughter Diane asserted that Ms. McAndrews lacked capacity to execute either of the latter wills and that the holograph in particular was the product of undue influence. Consequently, she asked the Court to endorse Ms. McAndrew’s original 2005 will. In 2005, the Deceased and her husband executed mirror wills, enduring powers of attorney and personal directives. In each case, the will (the “2005 Will”) named their daughter Diane as the alternate executor. Upon the death of the surviving spouse, both wills left $5000 bequests to each of Kevan, Shelagh and Christine, and the residue of the estate to Diane, making her the primary beneficiary. The Deceased's husband predeceased her. In 2011, the Deceased was diagnosed with Dementia and Diane obtained control over her affairs pursuant to an Enduring Power of Attorney. Devlin J. held that Diane had not raised sufficient suspicious circumstances to displace the presumption that the Deceased had testamentary capacity at the time she executed the 2011 Will:

IV. Analysis

[30] Orin brought this proceeding as an application for advice and directions. He seeks a declaration that the 2012 Holograph Will is valid and should be admitted to probate. Alternatively, he asks that I order a trial of the issue of the Deceased’s testamentary capacity at the time of execution of the 2011 Will and the 2012 Holograph Will.

[...]

[45] Diane challenges the validity of the 2011 Will. She acknowledges that the propounder of a will has the benefit of a rebuttable presumption that the testator knew and approved of the contents of the will and had the capacity necessary to execute it. However, she contends that there are suspicious circumstances that extinguish the presumption and return the onus to prove capacity, knowledge and approval to the propounder of that will. The law in this regard was concisely stated by the Supreme Court in Vout v Hay, [1995] 2 SCR 876, [1995] SCJ No 58, 1995 CanLII 105 at paras 26-27:

26 Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

27 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.

[46] Where the evidence raises a genuine issue as to whether suspicious circumstances surrounded preparation of the will, the proponent of the will reassumes the legal burden of establishing testamentary capacity: Penno v Penno, 2012 ABCA 387 at para 12.

[47] Diane cites this Court’s decision in Re Kozak, 2018 ABQB 185 at para 15 as enumerating the following factors to be considered in determining whether the presumption is displaced and the propounder must prove testamentary capacity:

-the extent of physical and mental impairment of the testator around the time the will was signed;

-whether the will in question constituted a significant change from the former will;

-whether the will generally seems to make testamentary sense;

-the factual circumstances surrounding the execution of the will;

-whether a beneficiary was instrumental in the preparation of the will.

[48] As Diane contends that each of these factors weighs against testamentary capacity, I will examine each in turn.

[...]

[69] Taking all of the foregoing into account, I am not persuaded that there are sufficient suspicious circumstances in this case to displace the presumption that the Deceased had testamentary capacity at the time she executed the 2011 Will. That being the case, I find that the 2011 Will was valid at the time it was executed and had the effect of revoking the 2005 Will.

In Bahry v. Zytaruk, 2002 ABQB 716 (CanLII), the personal representative made a claim for a grant of probate. Clarke J. ruled that the deceased did not have testamentary capacity at the time that she executed her later (1997) will as she did not appreciate the consequences of the change that she was making in the disposition of her estate. Therefore, formal proof of the later (1997) will was not granted and probate was granted for an earlier (1993) will. Clarke J. followed Vout v. Hay and also noted that the civil standard of proof on a balance of probabilities applies:

[12] In the case of Vout v. Hay 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 the Supreme Court of Canada dealt with the issue of burden of proof in connection with propounding a Will and testamentary capacity at pages 889 and 890 as follows:

. . . The burden with respect to testamentary capacity will be affected as well if the circumstances reflect on the mental capacity of the testator to make a will. Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

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 reassume the legal burden of establishing testamentary capacity. Both 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 . . . testamentary capacity. In this event, the legal burden reverts to the propounder.

[13] Dealing with the issue of extent of proof the following passage appears at page 888:

With respect to the first problem, in accordance with a general rule applicable in civil cases, it has now been established that the civil standard of proof on a balance of probability applies. The evidence, however, must be scrutinized in accordance with the gravity of the suspicion. As stated by Ritchie J. in Re Martin; McGregor v. Ryan 1965 CanLII 17 (SCC), [1965] S.C.R. 757, at page 766:

The extent of proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case.'

[...]

[108] There was some argument about whether the Plaintiff was required to prove that Nancy Korenda did have testamentary capacity or whether the onus lay with the Defendant to prove that there was not testamentary capacity. That argument revolved around the issue of whether there were suspicious circumstances or not in this case. I have concluded that the issue can be resolved without regard to who had the onus of proof. On the evidence which I have accepted and based on the medical interpretation of that evidence provided by Drs. Shulman and McCracken I am satisfied that at the time the land transfer and Will were executed by Nancy Korenda in June of 1997 she did not have testamentary capacity. She did not have testamentary capacity because she did not appreciate the consequences of the change that she was making in the disposition of her estate.

In From Estate, 2019 ABQB 988 (CanLII), Goss J. of the ABQB noted that the propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity and the propounder is aided by a rebuttable presumption. On proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity:

The shifting onus

[116] The propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity and the propounder is aided by a rebuttable presumption. On proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity: Vout v Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876 at paras 26. However, 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. Suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will (ie, beneficiary instrumental in its preparation or significant change from the former will), (2) circumstances tending to call into question the capacity of the testator (ie, physical and mental impairment), or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: see Royal Trust Corp of Canada v Saunders, 2006 CanLII 19424 at para 28, [2006] OJ No 2291, 2006 CarswellOnt 3478. The evidentiary burden on those attacking the will can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity: Vout, at paras 25 27.

[117] The Court of Appeal clarified in Mawhinney v Scobie, para 35, that a two-stage process to challenging the will is contemplated in Vout. First, if the presumption of testamentary capacity is triggered, this puts an evidentiary onus on the challenger to raise the suspicious circumstances to rebut the presumption. If the challenger succeeds by establishing a genuine issue to be tried, and a trial is ordered about the issue of testamentary capacity, then the onus shifts to the personal representatives to prove capacity. At each stage, the issue remains the same: did the testator have testamentary capacity? The difference is the evidentiary onus, the scope of the hearing, the nature of the evidence, the ability to determine credibility, and the nature of the relief granted.

[118] The civil standard of proof on a balance of probabilities applies. The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case: MacGregor v Martin Estate,

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