New Precedent on Mental Competence and Questionable Will Circumstances

While the Banks v. Goodfellow standard remains foundational for testamentary capacity, recent precedents recognize that mental competence can fluctuate. You do not need perfect mental health to create a valid will—only clarity during execution. BC’s WESA has shifted the burden of proof in suspicious circumstances, particularly for undue influence claims. Courts now carefully evaluate will-maker understanding at two critical moments: when giving instructions and when signing. Further exploration will reveal how these nuances apply to specific scenarios.

The Banks V. Goodfellow Standard for Testamentary Capacity

The cornerstone of modern legal capacity law, the Banks v. Goodfellow evaluation from 1870, remains the definitive standard courts apply when determining testamentary capacity.

If you are involved in a will dispute, you will need to understand this evaluation requires the testator to comprehend three key elements: the nature of making a will, the extent of their property being disposed of, and the claims of potential beneficiaries.

This standard does not demand perfect mental health. A testator with some cognitive impairment may still possess sufficient capacity to create a valid will if they satisfy these three requirements at the time of giving instructions and executing the document.

Courts recognize that mental capacity can fluctuate, allowing for valid wills during periods of lucidity.

Burden of Proof in Contested Will Cases

When contesting a will’s validity, understanding who bears the burden of proof becomes essential to building an effective case strategy. In British Columbia, the default assumption favours the will’s validity, with the initial burden falling on those seeking to uphold it. However, this burden shifts when suspicious circumstances arise.

Circumstance	Burden of Proof	Standard Required
Normal execution	Propounder of will	Presumption of validity
Suspicious circumstances	Propounder of will	Balance of probabilities
Undue influence (pre-WESA)	Will challenger	Clear proof of coercion
Undue influence (post-WESA)	Propounder of will	Disprove undue influence

You will need to identify whether suspicious elements exist in your case, such as questionable preparation methods, capacity concerns, or potential coercion. Remember that WESA has reversed the burden for undue influence claims, creating a more favourable position for challengers.

Identifying Suspicious Circumstances in Will Preparation

Recognizing suspicious circumstances surrounding a will’s creation serves as a critical step in determining its validity.

When you are reviewing a will for potential issues, pay attention to specific red flags that may shift the burden of proof to those seeking to uphold the document.

• Beneficiary involvement in the preparation of the will
• Sudden changes favoring individuals not included in previous wills
• Will creation during periods of questionable mental capacity
• Timing that coincides with significant health deterioration
• Evidence suggesting coercion or domination by others

You will need to assess these factors when challenging a will’s validity.

Remember that under British Columbia law, suspicious circumstances do not automatically invalidate a will, but they do require proponents to provide clear evidence that the testator fully understood and approved its contents.

Fluctuating Mental Capacity and Valid Will Execution

Although a person’s mental capacity may fluctuate during illness or advanced age, BC courts recognize that wills created during periods of lucidity can remain legally valid.

When evaluating testamentary capacity, courts examine the testator’s understanding at two critical moments: when giving instructions for the will and when executing the document.

You will need to demonstrate that the testator comprehended the nature of their actions, recognized their property’s extent, and understood who might reasonably expect to benefit from their estate.

Even if the testator experienced confusion at other times, a will signed during a clear mental state can withstand challenges. This principle was affirmed in Becker v. Becker (2016), where the court upheld a will created during hospitalization because the testator was deemed mentally competent when it was executed.

Proving Undue Influence in BC Estate Law

Unlike will capacity challenges, proving undue influence in British Columbia requires evidence that the testator’s free will was overpowered by coercion or manipulation.

Under traditional rules, the burden of proof rests with those contesting the will. However, WESA’s Section 52 has shifted this burden in newer cases.

While contestants once bore the full burden of proving undue influence, WESA’s Section 52 now shifts this responsibility to will proponents.

When challenging a will on grounds of undue influence, you should understand:

• The burden initially falls on you to establish a relationship of potential dependency or domination
• You must demonstrate circumstances suggesting the testator wasn’t acting independently
• Once suspicious circumstances are established, the burden shifts to the will’s defender
• Evidence of isolation, changed behavior, or sudden will changes can strengthen your case
• Timing matters—WESA’s reversed burden only applies to deaths after March 31, 2014

WESA’s Impact on Burden of Proof in Will Challenges

When the Wills Estates and Succession Act (WESA) came into force in 2014, it fundamentally altered how burden of proof operates in British Columbia will challenges.

Under Section 52, this legislation created a significant shift in cases involving undue influence claims.

Prior to WESA, those contesting a will had to prove undue influence occurred—a notoriously difficult task.

Now, if you can establish that a relationship of potential dependence or domination existed between the testator and another person, the burden shifts to the other party.

They must then prove that no undue influence was exercised over the will-maker.

This represents a substantial change to protect vulnerable testators, making it easier to challenge suspicious wills where power imbalances may have compromised the testator’s free choice.

How Vest Estate Law Can Help

Maneuvering through the complex terrain of evidential capacity and suspicious circumstances requires specialized legal expertise that Vest Estate Law provides with precision and care.

As a boutique firm dedicated exclusively to wills and estates law across Alberta and BC, we grasp the nuances of testamentary capacity challenges and can guide you through the process with confidence.

Our team can assist you with:

• Evaluating potential suspicious circumstances surrounding a will’s creation
• Building evidence to support or contest testamentary capacity
• Steering the shifting burden of proof under current legislation
• Representing your interests in estate litigation when disputes arise
• Providing preventative counsel to guarantee your will withstands future scrutiny

Work with a firm that focuses solely on Estate Law. Choose Vest for specialized knowledge in this complex legal area.

Frequently Asked Questions

Can Medical Records Alone Prove or Disprove Testamentary Capacity?

Medical records alone cannot definitively prove or disprove testamentary capacity. You will need additional evidence showing the testator’s understanding of their property, beneficiaries, and will’s nature at execution time.

How Long After a Will’s Execution Can It Be Challenged?

You can challenge a will within 180 days after the grant of probate in BC. However, courts may extend this period if they find legitimate reasons for delay.

Do Video Recordings of Will Signings Strengthen Validity Claims?

Yes, video recordings of will signings can strengthen validity claims by documenting your capacity, free will, and understanding of the document, helping counter allegations of suspicious circumstances.

What Happens When Witnesses to a Will Disagree About Capacity?

When witnesses disagree about capacity, you will face a credibility assessment by the court. The judge will weigh conflicting testimony alongside other evidence to determine if testamentary competence existed when the will was executed.

How Are Digital Assets Considered in Testamentary Capacity Assessments?

Digital assets do not change the fundamental capacity assessment. You must still understand you are making a will, know your digital property’s nature, and comprehend who will receive these online accounts and investments.

Conclusion

You are now better equipped to navigate BC’s complex will challenge landscape. When suspicious circumstances arise, the burden shifts to those defending the will, requiring clear proof of capacity. Remember that will-makers must meet the Banks v. Goodfellow standard, and WESA has reversed the burden in undue influence cases. Do not hesitate to seek legal counsel when facing these intricate estate matters.