S.C.J. No. 58
An 81 year old testator left the bulk of his estate to a 29 year old friend who assisted with chores on his farm the last few years of his life. The surviving members of the family challenged the validity of the will. Will was prepared by secretary of appellant’s parents lawyer. Appellant instructed the secretary. Appellant present when will read and spoke to testator “that’s what you decided” and he nodded. The testator was smart and not easily influenced.
If formalities of execution are met and the testator has capacity then the burden of fraud or undue influence falls on those attacking the will. The standard of proof remains the civil test but with suspicious circumstances the evidence is scrutinized dependent on gravity of circumstances.
Suspicious circumstances may be raised by:
a) Circumstances surrounding preparation of the will;
b) Circumstances calling into question the testator’s capacity;
c) Circumstances showing the testators free will was overborn by acts of coercion or fraud.
Suspicious circumstances spend the presumption the testator knew and approved contents and had necessary capacity and burden shifts to propounder.
Suspicious circumstances do not impact the burden on the person defending against an alleged valid will based on fraud or undue influence to prove same on a balance of probabilities.