Many legal challenges to the validity of the will involve an allegation that there were “suspicious circumstances” surrounding the drafting and execution of the will.

Suspicious circumstances are not grounds to invalidate the will but rather a finding of suspicious circumstances results in a shift in the burden of proof of the will.

The presenter of the will always has the legal burden to prove three requirements;

1. That the will was duly executed in accordance with the formal rules;
2. That the maker of the will had knowledge and approval of the contents of the will and;
3. That the maker of the will had testamentary capacity.

If the presenter of the will can prove that the will was duly executed, a rebuttable presumption arises that the last two requirements have also been met.

If suspicious circumstances are shown to be present, the presumption rebutted and the burden shifts back to the presenter of the will to demonstrate knowledge and approval or testamentary capacity as the case may be.

Written by Barrie Hayes