Invalid Wills and Suspicious Circumstances: Knowledge and Approval

A will must have knowledge and approval of the terms of their will in order for it to be valid. They must also have had testamentary capacity when drafting it. In BC, lack of knowledge or approval of a will is grounds for ruling the will invalid. The courts presume that a duly executed will is valid. When disagreements arise, people may wonder what knowledge and approval of a will really means.

Essentially, the will-writer must understand the terms of the will, and they must know what they are signing. The will-writer must understand the general nature of what they are giving away. These are mandatory requirements for a valid will in BC. Some circumstances that may indicate the will-writer did not have the proper knowledge and approval of their will include:

• Physical or mental handicaps restricting the ability to see or hear,
• Language barriers,
• Significant changes from previous wills in the final moments of the will-writer’s life,
• Beneficiaries being heavily involved in writing the will,
• Dependency on a beneficiary, physically and/or emotionally,
• Isolation from close friends and family, or;
• The will-writer not having read the will.

Challenging a Will for Lack of Knowledge and Approval

In BC, there is a presumption of validity for will-writers. This means that people who challenge a will must rebut the presumption. However, the burden of proof can be passed on to the defendant if the will-writer was unduly influenced or not aware of the terms of the will. Further, if a claimant can demonstrate suspicious circumstances surrounding the drafting of the will, the burden shifts to the defendant. Suspicious circumstances are circumstances where it is questionable if the will accurately expresses the mind of the will-writer.

When suspicious circumstances arise, the defendant must prove that the will-writer understood and approved of their will. If the defendant can prove this, the court may rule the will valid, dismissing the challenge.

Lack of Knowledge and Approval Example

A common example of a client who may lack knowledge and approval of their will is an elderly, recent immigrant to Canada who is not fluent in English, or struggles with translation of legal language. A lawyer prepares their will, but they may not fully understand the will’s contents. Regardless, they proceed to sign the will when it has not been written exactly as they intended.

A family member later chooses to challenge this will, bringing up the possible impact of the language barrier on the will-writer’s understanding of the document. The burden of proof is then on the executor of the will, not the challenging party, to prove that the will-writer understood and approved of the document regardless of the language barrier. Another important examples arises where the will-writer does not understand the nature and extent of property they are giving away.

Reminders for Beneficiaries

While in some cases it’s clear whether or not the will-writer understood and approved of their will, that is not always the case. There is no clear-cut definition for knowledge and approval, and it can be up to the defendant to prove the validity of the will in cases of suspicious circumstance. The circumstances, the will-writer’s previous wills, and even their behaviour and medical history can play an important role in determining to what extent knowledge and approval can be established.

You can challenge a will if you believe you were wronged, especially due to a lack of knowledge and approval. Contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.