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Vancouver BC Litigation Lawyers: Hobbs Giroday

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    • Testimonials
  • Practice Areas
    • Estate Solutions
      • Probate
      • Validity of Wills
      • Wills, Estates and Succession Act (“WESA”)
      • Trust Litigation
      • Articles
    • Negligence
      • Professional Negligence
      • Medical Malpractice
      • Dental Malpractice
      • Personal Injury
      • Products Liability
      • Articles
    • Business Law
      • Contractual Disputes
      • Enforcement of Judgments
      • Debt Collection
      • Shareholder Disputes
      • Securities Litigation
      • Construction
  • Our Team
    • David Hobbs
    • Ian Giroday
    • Berta Lopera
    • Dylan Segal
    • Austin DeBrincat
    • Danielle Carman
    • Lauryn Wray
  • Resources
    • All Articles
    • FAQ Videos
    • Podcasts
    • Publications
      • Legal Articles
      • Case Comments
      • Reported Cases
      • Business Law Resources
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Suspicious Circumstances in Making a Will 

Testamentary capacity, suspicious circumstances, knowledge and approval, undue influence and fraud have an interrelationship in legal analysis of facts surrounding the making of a will.

A party seeking to uphold a will has the burden to prove that the will was duly executed and is the product of a free minded and capable testator.

Testamentary capacity, suspicious circumstances, knowledge and approval, undue influence and fraud have an interrelationship in legal analysis of facts surrounding the making of a will.

A party seeking to uphold a will has the burden to prove that the will was duly executed and is the product of a free minded and capable testator.

In discharging the burden of proof, the party seeking to uphold a will, is aided by a rebuttable presumption. If all statutory formalities under the Wills Act have been observed it will be presumed that the testator had capacity and the requisite knowledge and approval to make a valid will. This presumption may be rebutted by the presence of suspicious circumstances relating to one or more of the following circumstances: surrounding preparation of the will; tending to call into question the testator’s capacity; or tending to show the testator’s free born acts were overborne by acts of coercion or fraud.

The party challenging a will must meet the burden of pointing to some evidence, which if accepted, would tend to negative knowledge and approval on the part of the testator.

Where suspicious circumstances arise the presumption is said to be spent, meaning it does not apply any further. In such case the person seeking to uphold the will has the burden to prove capacity, knowledge and approval. In other words the suspicious circumstances must be dispelled.

The extent of proof required to dispel suspicious circumstances will be proportional to the gravity of the circumstances.

There is no checklist of circumstances that will invariably fit the classification of suspicious circumstances. Common themes include: a beneficiary being involved in preparation of the will; the will favoring a new person who would not normally fall into the category of persons usually remembered in a will such as next of kin; and dementia.

Category: Articles, Estate Litigation Articles, Featured

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