How does a propounder of a will need to prove that the propostator had testamentary capacity when the will was executed?
British Columbia, Canada
The following excerpt is from Clark v. Nash, 1989 CanLII 2923 (BC CA):
In Lidstone v. McWilliams, 1931 CanLII 50 (SCC), [1931] 3 D.L.R. 455, [1931] S.C.R. 695, the headnote in the D.L.R. reads as follows: The propounder of a will must establish (a) that the testator had testamentary capacity when the will was executed, (b) that the will was duly executed and attested, (c) that the testator knew and approved of the contents of the will. When the first two conditions are satisfied, and when it is also shown that the will was read over by or to the testator before execution, there arises a strong presumption that he knew and approved of its contents, but if there are suspicious circumstances, the propounder of the will must remove the suspicion by proving that the testator knew and approved the contents of the will.
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