In British Columbia, there are three requirements for making a valid will:
- the will must be validly executed in accordance with requirements set out in section 37 of the Wills, Estates and Succession Act, SBC 2009 c 13;
- the will-maker must have the mental capacity to make a will; and
- the will-maker has to “know of and approve” the contents of the will. This means that the individual must comprehend the terms in the will and agree that those terms represent the bequests that he/she wants to make.
Proper execution of a will leads to a presumption that the will-maker knew and approved of the contents of a will, and had the necessary capacity.
However, circumstances surrounding the creation of a will may call into question whether these validity requirements were truly met. If someone challenging a will demonstrates that these circumstances are sufficiently worrisome, then the doctrine of “suspicious circumstances” is engaged.
When a will is held to have been created under “suspicious circumstances”, those seeking to prove the will have the burden of proving that the will-maker had the requisite capacity and knowledge and approval. Depending on what suspicions were raised, this can require further evidence of the will-maker’s mental capacity, knowledge and approval, or both. A failure or inability to marshal that evidence may lead to a finding that the will is invalid.
In determining the existence of suspicious circumstances, the court is not limited in what it may consider. There are a range of actions and situations that can result in a court making such a finding:
- physical or mental deterioration of the will-maker;
- changes to the will made near the end of life or during periods of illness;
- extreme changes in the testamentary plan or personal affairs of the will-maker that are not consistent with past behavior or the nature of familial relationships;
- involvement of beneficiaries in the will-making process, including where beneficiaries effectively take control of the decision-making or there exists some form of dependence on beneficiaries which could influence decision-making; or
- complete isolation from others, including secret decision- or will-making.
Suspicious circumstances are not easily made out. As noted by Justice Wilson in Watson v. Watson & Yelich, 2004 BCSC 1724, “it is not sufficient that circumstances create a general miasma of suspicion that something unsavory may have occurred”; rather, there must be “a specific and focused suspicion” for the doctrine to apply.
Recently, the British Columbia Supreme Court in Bhalla Estate, 2017 BCSC 1867 was asked to consider whether suspicious circumstances arose where a translator who had translated will instructions to a solicitor could not be identified by that solicitor.
In Bhalla Estate, Mrs. Bhalla, the deceased will-maker, could not speak English, and could not read or write in any other language. She had known her solicitor for some time, and had always communicated with him through various family members or friends who would act as interpreters.
The disputed will that had been submitted for probate named one of the deceased’s three daughters as executrix, and left the entirety of her estate to that executrix’s son. The validity of the deceased’s will was challenged during the probate process by her other two daughters on the grounds of suspicious circumstances. Their argument was mainly based on:
- the inability of any party to identify who the deceased’s specific interpreter was when the will was executed; and
- the allegation that their sister, the executrix under the disputed will (whose son was its lone beneficiary), may have been the interpreter at the relevant time.
Justice Betton found that the suggestion of suspicious circumstances was not based on any concrete evidence, and that the notion that the executrix was the interpreter was purely speculative. Further, he found that the unequal bequests in the disputed will did not rise to the level of suspicious circumstances. Finally, he also found that the solicitor’s lack of ability to recall the deceased’s interpreter on the day in question was insufficiently suspicious to invoke the doctrine. None of these circumstances, alone or in combination, were enough to displace the presumption of the will’s validity.
Two salient points can be drawn from Bhalla Estate: first, an unexpected or unequal disposition may not be enough on its own to amount to a suspicious circumstance. Second, something more than mere confusion around who interpreted a solicitor’s instructions is required to persuade a court that a duly executed will may be invalid.