When a will is challenged, one of the recurring battlegrounds is who has to prove what. The starting point is that a will which appears to have been properly signed and witnessed is presumed valid. But that presumption can be displaced, and the leading Supreme Court decision explaining how is Vout v. Hay.
The normal starting position
Ordinarily, once a will is shown to have been executed with the required formalities, the law presumes the testator knew and approved of its contents and had the capacity to make it. The person challenging the will bears the burden of displacing that presumption.
Vout v. Hay (1995)
Vout v. Hay clarified the role of "suspicious circumstances." Where the challenger points to circumstances that genuinely raise suspicion — surrounding the preparation of the will, the testator's capacity, or the possibility that the will does not reflect a free and informed choice — the presumption of validity is weakened. The burden then falls on the person putting the will forward (the propounder) to prove, on the balance of probabilities, that the testator had capacity and knew and approved of the contents.
Examples of suspicious circumstances can include a major beneficiary being closely involved in arranging or drafting the will, a sudden change that benefits one person at the expense of others, or a will made when the testator was seriously unwell or isolated.
Undue influence is separate
Vout v. Hay also kept undue influence distinct. Undue influence means coercion — pressure that overpowers the testator's own wishes so that the will expresses someone else's intentions rather than the testator's. Importantly, the burden of proving undue influence rests on the person alleging it, and it is a demanding standard. Mere influence, persuasion, or a close relationship is not enough; there must be coercion that overbears the will-maker.
Why the distinction matters in practice
- Suspicious circumstances can shift the burden onto the propounder to prove capacity and knowledge and approval.
- Undue influence must be affirmatively proven by the challenger and requires coercion, not just influence.
- Both often turn on documentary evidence, the drafting lawyer's file, and the testimony of those who were present.
For education only. Will challenges turn heavily on the evidence, and how the burdens fall can decide the outcome.
This article is general information for educational purposes only and is not legal advice. For advice on your situation, book a consultation.