When there is a challenge to the validity of a will on the basis that (1) the will-maker lacked testamentary capacity, or (2) the will-maker did not have knowledge and approval of the contents of the will, the person seeking to prove the validity of the will (the “propounder”) is assisted by the presumption of due execution.

The presumption of due execution provides that if a will is properly executed in compliance with the Wills, Estates and Succession Act (“WESA“), then it is presumed that the will-maker had knowledge and approval and testamentary capacity, subject to evidence of suspicious circumstances.  It then falls on the person challenging the validity of the will to rebut the presumption.

Section 37(1) of WESA sets out the formalities for making a will:

How to make a valid will

37   (1) To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as the will-maker’s signature, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker…

If the will has been validly executed, then the propounder can seek to rely upon the presumption.

The importance of the presumption of due exectuion is illustrated by the recent decision of the B.C. Supreme Court in Grace Estate (Re) 2022 BCSC 1283.

In Grace, the deceased’s father was named as executor in the will.  The deceased’s mother challenged the validity of the will, arguing that the deceased (her daughter) did not read or know the contents of the will before signing it, that she signed the will under suspicious circumstances, and that she may have lacked capacity.

At the first hearing, the court held that there was not sufficient evidence to prove that the will was read by or to the deceased.  That meant there was no presumption of testamentary capacity (another presumption available to the propounder of a will), and the father must prove both that the deceased had capacity, and that she knew and approved of the contents of the will.  The father had failed to prove the will in solemn form by way of application (on affidavit evidence), and the matter was referred to the trial list for proof in solemn form.

However, neither counsel at the first hearing advised the court of the cases discussing the presumption of due execution.  In light of those cases, the father applied for a reconsideration of the original decision.  The order arising from the original decision had not yet been entered, which meant that the original judge could hear further submissions.  The father argued (and the court agreed) that had case authorities on the presumption of due execution been brought to the court’s attention, they would have substantially altered the result.

The court exercised its discretion to reconsider its decision, and concluded that the father has the benefit of the presumption of due execution, and has proven the will in solemn form.  The will had been validly executed in compliance with WESA, and so the facts gave rise to a rebuttable presumption that the deceased knew and approved the contents of the will.  There were no suspicious circumstances.  The mother swore in her affidavit that she asked her daughter whether she had read the will, and her daughter had said “no”.  However, this was not sufficient to rebut the presumption (and was inconsistent with all of the other evidence surrounding the deceased’s intentions)