If the will-maker’s Will had overcome the proof of formal validity of the will, there is a presumption of the will-maker’s testamentary capacity, knowledge and approval of the Will, unless, suspicious circumstances are present with respect to the testamentary capacity, knowledge and approval of the will-maker.
The Supreme Court of British Columbia recently invalidated the Will of a BC woman finding her to have lacked capacity upon her execution of the will due to suspicious circumstances.
In the case of Jung Estate vs. Jung Estate, 2022 BCSC 1298, the testatrix died leaving two sons. It was alleged by one son, the plaintiff and executor of the estate, that their mother was unduly influenced by his brother, the defendant, when she made her 2017 Will. The Will leaves a specific bequest of a real estate property to the defendant and the residue of the estate to the plaintiff. The parties later agreed that the residue of the estate would be fully spent and there will be no funds to be distributed to the plaintiff, effectively disinheriting the plaintiff in the Will. The plaintiff filed a complaint with the BC Supreme Court against the defendant.
The Court ruled in favour of the plaintiff and the Will was declared invalid. In invalidating the Will, the Court extensively analyzed whether there were suspicious circumstances surrounding the creation and execution of the Will.
As laid down by the Court:
“When a Will has been executed in accordance with the statutory formalities (such as the will is in writing, was signed at the end of the document in the presence of two witnesses at the same time at the presence of the will-maker), the propounder is aided by a rebuttable presumption that the will-maker possessed the requisite knowledge and approval, and testamentary capacity: Vout at para. 24; Lantzius Estate at para. 64; Laszlo at para. 205; Leung v. Chang, 2013 BCSC 976 at para. 31, aff’d 2014 BCCA 28, leave to appeal ref’d  S.C.C.A. No. 261 [Leung]; Allart Estate v. Allart, 2014 BCSC 2211 at para. 33 [Allart Estate].’
If the will-maker’s will had overcome the proof of formal validity of the will, there is a presumption of the will-maker’s testamentary capacity, knowledge and approval of the Will, unless, suspicious circumstances are present with respect to the testamentary capacity, knowledge and approval and of the will-maker.
In this case, the plaintiff alleged suspicious circumstances surrounding the execution of the will; thus, reverting the burden to the defendant, who alleges the validity of the Will, of proving the testatrix’s testamentary capacity and knowledge and approval, on a balance of probabilities.
What are suspicious circumstances? The Court explained the same to be:
“Suspicious circumstances must raise what has been described as a “specific and focused suspicion”; a “general miasma of suspicion that something unsavoury may have occurred” is not sufficient: Leung at para. 32; citing Clark v. Nash (1989), 1989 CanLII 2923 (BC CA), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.). Such suspicions must be “well grounded” and will generally relate to circumstances (1) surrounding the preparation and execution of the will, (2) calling into question the capacity of the will-maker, or (3) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25; Allart Estate at para. 32. There is no checklist of suspicious circumstances, but one commonly occurring theme is where a beneficiary is instrumental in the preparation of the will (especially where they stand in a fiduciary position to the testator): Laszlo at para. 207.”
After analyzing the evidence presented by both parties, the Court found the testatrix to have no testamentary capacity at the time she made the Will.
According to the Court, the testatrix did not have a sufficient understanding of the value of her assets and she did not appreciate the actual consequences of her decision to give the Property to only one son. Further, there was no evidence that the testatrix understood the legal difference between a specific gift and a gift of the residue nor an understanding that all estate expense would be paid from the residue.
Worthy to note that the Court said: “ While Ms. Jung did not need the “metronomic precision of an accountant” she did need to be able to appreciate the effective result of a specific gift of the Property to Jerry on the distribution of her estate, and most importantly, upon the amount remaining in the residue of her estate. I find she did not have the necessary capacity to understand the nature and the effect of the distribution she set out in the Will, and as a result accordingly did not have the testamentary capacity necessary to create a valid will.”
The Court invalidated the Will of the testatrix and has reinstated her 2001 Will and 2002 Codicil.
Please see the summary from the Canadian Lawyer Magazine: