What is the burden of proving the capacity of a testator in a will?
British Columbia, Canada
The following excerpt is from Petrie v. Burnett, 2008 BCSC 1503 (CanLII):
The burden of proving testamentary capacity is on the party propounding the will, but there is a presumption of capacity where the will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the propounder to prove testamentary capacity on the balance of probabilities. (Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876).
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