What is the legal burden to prove the knowledge and approval of the testator in a will?
British Columbia, Canada
The following excerpt is from Woodward v. Grant, 2007 BCSC 1192 (CanLII):
The party seeking to propound a will has the legal burden to prove the testator’s knowledge and approval of the provisions of the will: see Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, 7 E.T.R. (2d) 209, which discusses much of the law set out below regarding presumptions about the validity of wills and regarding suspicious circumstances. Any will that does not express the real or true “intention” of the testator will be set aside, even if the testator had testamentary capacity, and was not subject to undue influence.
The propounder of a will must also show that the will was the free act of a testator who, at the time the will was made, had a disposing mind and memory. See Re Martin; MacGregor v. Ryan, 1965 CanLII 17 (SCC), [1965] S.C.R. 757, 53 D.L.R. (2d) 126 (S.C.C.).
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