This is the second article in a series covering a recent series of CPD programs by the OBA Trusts and Estates Section relating to Will challenges. In the second session, “Gathering the Evidence and Establishing the Grounds” the panel explained several important evidentiary considerations in preparing a Will challenge application. In particular, counsel ought to turn their minds to the shifting burdens of proof in Will challenges, a wide variety of evidentiary sources, and common admissibility and ethical issues.
Shifting Burdens and Suspicious Circumstances
Even though the “location of the burden of proof is of unusual importance in cases of contested wills,” counsel is often uncertain about where the burden lies. The legal burden rests with the propounder of the Will, who is responsible for establishing capacity, knowledge and approval, and due execution. However, if the propounder can establish that the Will was duly executed and that the testator read and understood the Will, they benefit from a presumption of validity and are relieved from the responsibility of establishing capacity and knowledge and approval.
As discussed by the panel, if the presumption is engaged, an evidentiary burden is placed on the Will challenger, who must either raise “suspicious circumstances” or establish undue influence. If the challenger is successful in raising suspicious circumstances, the legal burden will shift back to the propounder to establish that the Will is valid: they must now show that the testator had capacity and knowledge and approval; in other words, they must dispel the suspicious circumstances. While the standard of proof remains a balance of probabilities, the court will scrutinize the evidence in proportion to the gravity of the circumstances raised.
During the program the speakers addressed that, importantly, at no point does the propounder need to establish a lack of undue influence. Proving undue influence is always the responsibility of the party challenging the Will, and it is a very difficult claim to establish because it effectively amounts to a claim of coercion or fraud. It requires not only that there was an opportunity for undue influence, but also that the influence caused the testator to change their Will. Panelists suggested that the client needs to be warned that establishing undue influence is very challenging because it is treated by the courts as an allegation of fraud or bad faith. This also means that the client faces elevated costs if they are not successful. In other words, the stakes are high. Speakers suggested that given the difficulty of proving undue influence, even if the challenger falls short of establishing such a claim, it can also use the evidence in that regard to raise suspicious circumstances.
Commonly Used Evidence
As discussed during this program, a difficulty often faced by persons challenging a Will is that before a challenger brings an application, they may not have access to much evidence. The panel suggested that, in terms of evidence, counsel should consider asking their clients for a family tree, a copy of the challenged Will and any previous Wills, evidence related to the testator’s disposition, sophistication, and professional history, and evidence related to significant relationships, disputes, and events. Text messages, pictures, and cards demonstrating relationships can also be included in an application and are particularly useful in the early stages.
Often, however, key evidence will be included in the drafting lawyer’s file. It is often not until a lawyer has this evidence that they will truly be able to assess the merits of the case. The file may not be available to the client before court-ordered productions have been made, though, and in this regard the panel emphasized that counsel must be careful to explain the risks and expense of litigation to their client.
Admissibility Issues to Consider
Panelists shared that much of the useful evidence in Will challenges can become problematic at trial because it often constitutes hearsay and opinion evidence. Additionally, speakers noted that counsel needs to be aware of section 13 of the Evidence Act, R.S.O. 1990, c. E.23, which requires there to be independent corroborative evidence.
The program included a helpful discussion of ethical issues, and issues that most commonly lead to reports to LawPRO. The common issues reported to LawPRO in estates matters relate to inadequate investigation and poor communication. Lawyers must be diligent in asking questions related to undue influence and capacity, despite the potential difficulty engaging with these topics.
For drafting lawyers, providing your file when asked to produce it can be problematic because, if the Will’s validity is being challenged, the executor’s status may no longer be certain. In such a situation, the drafting lawyer should therefore be extremely cautious, should likely not be taking instructions from the named executor, and should immediately report to LawPRO.
As with the first session in this series, the panel shared some very useful insight. I look forward to sharing my thoughts on the third session in my next article.
 Scott v Cousins, 2001 CarswellOnt 50.
 Vout v Hay, 125 DLR (4th) 431, 82 OAC 161.
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