What is the test for establishing that a will was duly executed without the use of the presumption of due execution?
British Columbia, Canada
The following excerpt is from Yen Estate v. Chan, 2013 BCCA 423 (CanLII):
As they did before the trial judge, the appellants rely on the following passage from the decision of Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, 125 D.L.R. (4th) 431 at para. 26, for their position that the requisite formalities must be proven without the use of the presumption of due execution: Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after 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.
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