Suspicious circumstances

These are factual circumstances that would make someone suspicious about whether the will is a true representation of the testator’s wishes.

These suspicious circumstances alone don’t typically constitute a basis for challenging a will and are normally considered during a proceeding based on lack of testamentary capacity and undue influence.

Examples of circumstances which may be suspicious are:

• Circumstances that question the capacity of testator;
• Circumstances regarding the preparation of will; or
• Circumstances that can show that undue influence, coercion or fraud overcame the testator’s free will

Undue Influence

This is an equitable doctrine that can be difficult to prove. If proven that influence was being exerted on the testator, the court has the ability to set aside a will (or gift/transfer). The onus us on the challenger to prove the existence of undue influence.

Formalities

A “formal” will in Ontario must be signed by the testator at its physical end and signed by at least two witnesses. Another option is for a person to sign on the testator’s behalf in the testator’s presence and at the testator’s direction (SLRA, s.4(1)(a)).

The testator must sign (or acknowledge his/her signature) before at least two witnesses who are present at the same time (SLRA, s.4(1)(b)). Even though each of the required witnesses need sign only in the presence of the testator, it is considered best practice to have all three parties sign in a room at the same time.

A beneficiary or legal spouse should not act as a witness. If they do, the gift to that beneficiary fails, unless a judge orders otherwise.