A testator must have knowledge and approved of the contents of her will. This is one of the requisite elements for proving a will in a solemn form. Knowledge and approval, and its closely related cousin of due execution, is generally viewed as an easier test to meet compared with testamentary capacity. But knowledge and approval may be difficult to establish where suspicious circumstances exists.

Ordinarily if certain conditions are met then the testator is presumed to have had knowledge and approval of her will. The propounder has the benefit of that presumption. As stated in Vout v. Hay, 1995 CanLII 105 (SCC) (“Vout”), “Upon proof that the will was duly executed with the requisite formalities, and having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.” However, if suspicious circumstances exist then the propounder of the will no longer has the benefit of the presumption. Instead, the propounder has the burden of establishing knowledge and approval on a balance of probabilities.

Suspicious circumstances are not limited to the facts surrounding the preparation of the will. The Court in Vout articulated three categories in which suspicious circumstances may be raised: (i) circumstances surrounding the preparation of the will, (ii) circumstances tending to call into question the capacity of the testator, or (iii) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. In determining the presence of suspicious circumstances the following factors can be considered: the extent of physical and mental impairment of the testator at the time the will was executed; whether the will under consideration constituted a significant change from the former will; whether the will under consideration makes “testamentary sense”; the factual circumstances surrounding the execution of the will; and whether a beneficiary was instrumental in the preparation of the will. Once suspicious circumstances is raised sufficient to “excite” the court, the burden shifts to the propounder of the will.

That shift is demonstrated in the 2017 Ontario Court of Appeal case of Stekar v. Wilcox, 2017 ONCA 1010 (CanLII), (“Stekar”). In Stekar, the Court of Appeal upheld the trial judge’s decision to not admit the impugned will to probate and dismiss the appellant’s probate application. The Court agreed with the trial judge that suspicious circumstances existed with respect to the making of the deceased’s will and the changing of an earlier will. The Court noted that some of the suspicious circumstances were:

• the 2012 Will was prepared at a time when the Deceased was of questionable capacity due both to his historical and recent health issues and hospitalization, and his clinical condition and behaviour at a time proximate to the making of the 2012 Will;
• the 2012 Will provided for a radical change from the beneficiaries named in the 1999 Will.  It also stipulated that a woman who had served as the Deceased’s caregiver for less than one month prior to the date of the 2012 Will was to receive 10% of his Estate;
• the 2012 Will was typed, but the Deceased did not own a computer or a typewriter and had no means to create a typewritten document; and
• in various conversations in the days prior to the making of the 2012 Will, the Deceased had made multiple, contradictory statements regarding the identity of his intended beneficiaries.

With suspicious circumstances established, the trial judge correctly noted that the burden of proving knowledge and approval (and testamentary capacity), shifted to the propounder of the impugned will. The trial judge found that the propounder had not met the burden. The Court held that the finding of the trial judge was amply supported by the evidence, as follows:

(i) the testamentary dispositions under the 2012 Will were completely at odds with the Deceased’s testamentary intentions as communicated to his treating physician and various friends in the 60 days prior to the execution of the 2012 Will, as well as with the provisions of the 1999 Will;

ii) the fact that the 1999 Will was handwritten by the Deceased himself, whereas he could not have prepared the typed 2012 Will;

iii) the absence of any evidence at trial regarding the instructions for or the preparation of the 2012 Will; and

iv) the absence of any evidence from Joy Vassal, who was present when the 2012 Will was executed and stamped and signed it.

As the Court noted, the trial judge held “that the suspicious circumstances had a serious impact on the critical question whether the appellant had met his burden of proof to establish the Deceased’s knowledge and approval” of the will. Citing the Supreme Court of Canada in MacGregor v. Martin Estate, 1965 CanLII 17 (SCC), the Court noted “The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case.”

Knowledge and approval may not be regarded as the primary ground upon which to challenge the validity of a will, but it should not be overlooked or discounted. If suspicious circumstances can be established then the burden of proving knowledge and approval shifts to the propounder of the will, which may make it more difficult to prove the will in solemn form.

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