Knowing and Approving the Contents of a Will: The Applicable Burden of Proof


A basic tenet of estate law is that the testator must know and approve of the contents of his or her will; if the testator does not, the will is not valid. In Maddess v. Estate of Johanne Gidney, 2009 BCCA 539, the BC Court of Appeal reaffirmed the applicable test and held that the evidence established that the testator knew and approved of the contents of her will.

Mrs. Racz had three children: Johanne, Ernie and Ethel. Under Mrs. Racz’s will, Ernie received Mrs. Racz’ half interest in an apartment building and the residue of the estate was divided equally amongst the three children. Ernie passed away before the trial and his daughter, Lisa, brought an application to have the will proven in solemn form. The only issue on appeal was whether Mrs. Racz knew and approved of the contents of her will.

In litigation, an important question is often who has the burden of proof. Lisa, as the person seeking to establish the validity of the will, had the burden of proving that Mrs. Racz knew and approved the contents of her will. However, the courts have established a presumption that once it is found that the will was read by the testator, or the contents otherwise brought to his or her attention, and that he or she appeared to understand it, the testator is presumed to have known and approved of the contents of the will. This presumption may be rebutted by producing “some evidence, which if accepted, would tend to negative the knowledge and approval”.

The evidence established that Mrs. Racz had the contents of her will brought to her attention and she appeared to have understood it. Hence, Mrs. Racz was presumed to know and approve of her will. Johanne, in an attempt to rebut the presumption, introduced evidence that Mrs. Racz did not speak English well and was not sophisticated in business. Further, Johanne argued that because the tax on the apartment building would be paid out of the residue of the estate, a fact that Mrs. Racz might not have understood, she may not have understood that she was effectively leaving less to Joanne and Ethel.

The Court of Appeal held that while the test requires “some evidence” to rebut the presumption, the court considers all of the evidence when considering whether there is “some evidence” to rebut the presumption. Hence, trial judges should not analyze each piece of evidence independently to determine whether it tends to negate the knowledge and approval of the testator but should instead consider each piece of evidence in context. In considering all of the evidence in this particular case, both the trial judge and Court of Appeal found that Johanne’s evidence did not rebut the presumption that Mrs. Racz knew and approved of the contents of her will.