Disclaimer: This article provides general information, not legal advice. Every case turns on its own facts and evidence.

The starting point: a will is presumed valid—until “suspicious circumstances” are raised

In British Columbia, a will challenge is not about whether the result is “fair” (that is usually a wills variation issue). A validity challenge asks a narrower question: is the will legally effective? The framework begins with formal validity (proper execution) and then moves to substantive validity—whether the will-maker had capacity, knew and approved the contents, and acted freely.

Where the will was duly executed and appears to have been read by or to the will-maker, the law generally starts with a presumption that the will-maker had capacity and knew and approved its contents. That presumption can be displaced by well‑grounded suspicious circumstances, which then require the party propounding the will to prove capacity and knowledge/approval on a balance of probabilities (and, in practice, to “answer” the suspicion).

This matters because most estate disputes are decided on the quality of the record, not the rhetoric. A court will not invalidate a will based on a generalized sense that something “feels off.” The suspicion must be anchored in evidence.

Formal validity: WESA’s execution requirements

Section 37 of British Columbia’s Wills, Estates and Succession Act (WESA) sets the baseline for a formally valid will, including execution requirements and minimum age. If the will fails formal requirements, that is a different pathway (often involving WESA s. 58 “curative” applications), which is distinct from proof in solemn form and should not be conflated.

For a typical validity contest, however, the practical focus is usually not “was there ink on the page,” but whether the will-maker had the requisite mental capacity, knowledge and approval, and freedom from undue influence at the critical times.

Ground #1 — Testamentary capacity (the “disposing mind and memory”)

Capacity is assessed at the time will instructions are given and at execution (and capacity can fluctuate). BC courts continue to use the classic capacity framework (often traced to Banks v. Goodfellow), and BC authority confirms the practical elements: understanding the nature and effect of making a will, the general extent of one’s property, and the claims of those who might reasonably expect to benefit.

A key point for litigators and clients: capacity disputes are highly fact‑specific. Courts examine the will-maker’s functioning in real life—medical records, observed cognition, and whether the will-maker could understand and weigh the relevant considerations at the material times.

Practical indicators courts commonly care about

While every case is unique, capacity disputes tend to turn on evidence such as: contemporaneous medical notes, dementia or neurocognitive disorder markers, medication effects, hospitalizations, and reliable lay observations of confusion or inability to understand the transaction. These are not “automatic” winners, but they are often the building blocks of a serious record.

Ground #2 — Knowledge and approval (did the will-maker understand what they signed?)

Even where the will-maker has baseline capacity, the propounder must still show the will-maker knew and approved the contents of the will. The doctrine becomes critical when there are suspicious circumstances—especially if someone else drove the process (instructions, drafting, or execution logistics).

The Supreme Court of Canada in Vout v. Hay explains how suspicious circumstances interact with knowledge/approval and capacity, including that the presumption can be spent when the evidentiary record raises concerns in categories such as (i) preparation, (ii) capacity, or (iii) coercion/fraud. BC cases regularly apply this framework.

Recent BC appellate commentary underscores that suspicious circumstances must be grounded in evidence and that the court scrutinizes whether the will-maker genuinely understood and accepted the will’s contents, particularly where major changes were made and a beneficiary was instrumental in the process.

Ground #3 — Undue influence (WESA s. 52 and the burden shift)

Undue influence is not ordinary persuasion. It concerns whether the will reflects the will-maker’s free agency, or whether someone in a relationship of dependence or dominance overbore that agency.

In BC, WESA s. 52 is a major statutory tool: where a person is in a position where the potential for dependence or domination of the will-maker exists, the burden can shift to the person seeking to uphold the will to disprove undue influence. This recognizes a real-world litigation problem: direct evidence of coercion is rare.

Recent BC decisions and commentary illustrate how courts evaluate undue influence through surrounding circumstances—dependency, vulnerability, control over access, isolation, and the beneficiary’s involvement in the will‑making process.

“Suspicious circumstances” is not a standalone claim—but it changes everything

A common misconception is that “suspicious circumstances” is itself a cause of action. It is better understood as an evidentiary doctrine: it can remove presumptions and force the propounder (person seeking to probate a will) to prove capacity and knowledge/approval on a balance of probabilities, proportionate to the gravity of the suspicion.

BC appellate guidance also warns that a generalized cloud of suspicion is not enough—what is required is evidence capable of undermining the foundational elements. That is why serious will challenges are built like any other civil case: plead tightly, prove with admissible evidence, and avoid speculation.

When to speak to counsel (practical triggers)

Consider getting immediate legal advice if: (1) the will was made during a serious illness, hospitalization, or cognitive decline; (2) a beneficiary arranged the lawyer/notary, provided “instructions,” or controlled attendance; (3) there was a dramatic late‑life change from prior estate plans; or (4) there are credible concerns about coercion, isolation, or dependency dynamics

If you believe you have grounds to challenge a will, contact our office promptly. Early steps—such as preserving evidence and considering a notice of dispute—can be critical.