Suspicious Circumstances in Will-Writing: Who has the Burden of Proof?

When someone believes a will is invalid due to suspicious circumstances, they can challenge the will. The person challenging the will has the burden of proof- they must demonstrate that the will is invalid. If they can demonstrate that the circumstances interfered with the testator’s ability to understand and approve of their will, or their freedom to sign it, the courts can rule the will invalid. We refer to this as the doctrine of suspicious circumstances.

The doctrine of suspicious circumstances ensures that testators have acted freely and voluntarily in their will-making process, and prevents the enforcement of invalid wills. If a will writer didn’t understand, approve of or freely choose to execute their will, it may not reflect their true testamentary wishes.

How Does the Doctrine Work?

The courts presume that duly executed wills are valid. According to section 37 of the Wills, Estates and Succession Act, a will must:

• Be in writing;
• Be signed at the end in the presence of two or more witnesses, and;
• Be signed by two or more witnesses.

Because the courts presume that a duly executed will is valid, the person challenging the will has the burden of proof to rebut the presumption. To challenge a will under the doctrine, an interested party must demonstrate on a balance of probabilities that the will is invalid. In practice, this means that they must provide evidence demonstrating at least a 51% likelihood that the will is invalid due to the circumstances. This could mean that they show the will in question wasn’t the final will of the deceased, provide evidence that the will writer didn’t have testamentary capacity when writing the will, or that they weren’t aware of the will’s contents.

Reversing the Burden of Proof

If the claimant is able to prove that suspicious circumstances impacted the validity of the will, they rebut the presumption. This means that the defendant will have to demonstrate the will is still valid despite the suspicious circumstances. They will have to show the court that the circumstances didn’t interfere with the will writer’s testamentary intentions. The defendant is usually the executor, who seeks to show that the will is valid in order to continue the administration process.

In some situations, this could mean the executor must prove the will in solemn form, which is a conclusive process in front of the courts which determines if the will is valid or not.

Proof in Solemn Form

To provide a proof in solemn form, the court considers evidence concerning the circumstances of the will’s drafting and execution. During this process, the executor must prove that:

• The will was duly executed;
• The testator had testamentary capacity when they wrote the will;
• The testator was knowledgable of the will’s contents; and
• The testator approved of the will, not being under undue influence.

Key Takeaways

Ultimately, it is up to the claimant to demonstrate that suspicious circumstances interfered with the will writing process, invalidating the will. When a claimant successfully establishes suspicious circumstances, the defendant then has to show the will is still valid. If the courts determine that the suspicious circumstances lack significance or relevance, the claimant must present additional evidence. Otherwise, the courts will dismiss their claim.

If you have been unfairly disinherited and believe suspicious circumstances impacted the testator, contact an experienced estate lawyer today.

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.