BC Testamentary Capacity Suspicious Circumstances lawyers handle cases where a Willmaker is influenced or incapable of properly making a valid Will. When someone is left out of a Will or disinherited they are hurt and they may suspect the reason for this isn’t legitimate. Sometimes they are right and other times they are wrong. In today’s blog, Lorne MacLean, QC and Fraser MacLean explain how a Will can be challenged for lack of testamentary capacity and set aside for suspicious circumstances. The blog also explains the test a court will use to decide if the deceased BC Willmaker could make a valid Will. Our other blogs discuss how valid Wills can be varied in unfair wills variation disputes.
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In the July 2019 decision of Wilton v. Koestlmaier 2019 BCCA 262. The trial judge found no suspicious circumstances were surrounding the making of the codicil and that the deceased had the requisite testamentary capacity despite being slowed by a past stroke and the appeal of her three grandchildren should be dismissed. The BC Court of Appeal agreed. So what is the test for upholding a Will when someone alleges lack of capacity or suspicious circumstances? Here is the law as explained by the Court of Appeal and our top-rated Vancouver BC Testamentary Capacity Suspicious Circumstances lawyers:
 The propounder of a will bears the burden of proving that:
(1) the formalities of will-making were complied with;
(2) the testator possessed the requisite capacity to make the will; and
(3) the testator knew and approved of the will’s contents. Propounders are aided in this task by a rebuttable presumption of testamentary capacity, which directs the court to presume that testators have capacity to make a will where it is duly executed in accordance with the appropriate formalities and read by or to the testator, who appeared to understand it: Vout v. Hay,  2 S.C.R. 876 at paras. 25–26.
 Where challengers to a will are able to satisfy the court that there were suspicious circumstances surrounding a will’s preparation which call into question the testator’s mental capacity to understand and approve of its contents on a balance of probabilities, the presumption is spent, and the propounder reassumes the legal burden of establishing testamentary capacity on the civil standard: Vout at para. 27.
 The appellants have not shown a palpable and overriding error in the judge’s conclusion that there were no suspicious circumstances surrounding the making of the Codicil. There was ample evidence supporting the judge’s findings of fact which led to her determination. The judge accepted the evidence of the executors’ witnesses that Maxine was independent, made her own decisions, and decided what to do and when to do it in September 2006. She found that Maxine suffered from physical impairment, affecting her balance and speech following her stroke in 2004, but that Maxine’s cognitive and mental functioning were not affected. The judge rejected the appellants’ testimony that Maxine was not able to converse after 2004, concluding that the appellants’ recollections were mistaken. To this end, the judge preferred the independent evidence of Maxine’s physician and caregivers at the time, who she concluded had spent much more time with Maxine following her stroke in 2004 than the appellants.
 The judge found nothing untoward about Larry’s involvement in Maxine’s estate planning as her adult son and executor and trustee of her estate, especially given the judge’s findings that Maxine suffered from physical impairment and could not effectively write by hand following the 2004 stroke. The judge found Larry’s conduct and the handwritten instructions to be consistent with Maxine’s wishes, based on the evidence of Mr. Spohn, who had discussed the Codicil with Maxine in detail, and who concluded that she understood its effects. It was open for the judge to make these findings based on the evidence before her.
 The decision in Banks remains the leading authority on testamentary capacity. Thefactors applied to determine testamentary capacity are not controversial. It is essential that a testator: understand the nature of the act of making a testamentary document and the effect of the document; understand the extent of the property of which she is disposing; and be able to comprehend and appreciate the claims to which she ought to give effect. The appellants allege the judge erred in law by failing to apply the test from Banks. The appellants also allege the judge misapprehended the evidence which led her to conclude Maxine knew and understood the contents of the Codicil.
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In the end, the Appeal was dismissed because the trial judge properly relied on evidence from witnesses whom she found to be reliable, independent and professional. As a result of the appellants’ failure to establish suspicious circumstances, the presumption of testamentary capacity remained as the trial judge found that the codicil was executed following the appropriate formalities and that the testator read and understood its contents. Finally, the appellants could point to no error in the judge’s exercise of discretion in admitting the report of the deceased’s family physician indicating she was competent to make a Will.
Call our Vancouver BC testamentary capacity suspicious circumstances lawyers promptly if you suspect a loved one is being bullied, mistreated or unduly influenced at 1 877 602 9900