Until a grant of probate is issued, the executor does not have any legal right to deal with the assets of the testator. In order to obtain a grant of probate of a will, the will must be proved to the court.

Probate actions are actions to prove a will in solemn form.

The vast majority of wills are proved in common form under Rule 61 of the Rules of Court. This process does not involve the commencement of any action. The grant of probate is issued on the basis of affidavit evidence filed with the court by the executor. Once the grant is issued, the executor can proceed to administer the estate. A will proved in common form can later be subject to an action to revoke the grant of probate on the basis that the will was not valid.

Proof in solemn form protects a will from later attack, as once a will has been proved in solemn form it is protected under the principle of res judicata (meaning a matter which has already been conclusively decided by a court and is thus conclusive as between the parties). A will proved in solemn form can only be attacked if the will is later found to have been revoked or if it is proven that the grant in solemn form was obtained by fraud..

The necessity for proof in solemn form most of the time arises in circumstances of factual controversy. A will is usuallyproved in solemn form by commencement of an action. There are two ways in which probate actions generally arise:

  1. A beneficiary files a caveat or otherwise makes known to the executor that they take issue with the validity of the will and the executor is therefore required to commence a proof in solemn form action;or
  2. The executor obtains proof in common form and someone commences an action for revocation of the grant of probate. The executor is them required to counterclaim for proof in solemn form.

Parties to the Action

Rule 62(2) dictates that all persons having an interest in upholding or disputing the validity of a testamentary paper shall be joined as defendants. Pursuant to Rule 62(3), the writ of summons or statement of claim must contain a statement of the interest of the plaintiff and each defendant in the estate of the deceased.

The executor must also be named as a party. A person interested in the estate who is not named as a party may enter an appearance and defend the action as if they were a defendant (Rule 62(4)).

A person “interested in the estate” would likely include the executor(s), beneficiaries under the will, beneficiaries under the prior will if there is a prior will and intestate heirs if there is no prior will.

The Law Relating to Validity of Wills

When an action is brought to prove a will in solemn form, a court must determine the validity of that will. The following are possible grounds for invalidating a will:

  1. invalid execution;
  2. lack of knowledge and approval;
  3. testamentary incapacity; and
  4. undue influence and fraud.

Burden of Proof

The onus of establishing the validity of a will is on the propounder of the will, insofar as they must show that the will was validly executed, that the testator had knowledge and approval of the contents of the will, and that the testator had testamentary capacity. The propounder of the will is aided in this regard by a rebuttable presumption.

Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. In those circumstances the burden shifts to the attacker of the will to prove lack of knowledge and approval, lack of capacity or undue influence.’

The Doctrine of Suspicious Circumstances

If suspicious circumstances are established, the burden of proof shifts again and there is no presumption of validity where the will is executed with the requisite formalities and read to or by the testator.

Suspicious circumstances may be:

  1. circumstances surrounding the preparation of the will;
  2. circumstances tending to call into question the capacity of the testator; or
  3. circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

In Vout v. Hay, the Supreme Court of Canada held that any of the above three categories of suspicious circumstances would affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity would also be affected if the suspicious circumstances reflected on the mental capacity of the testator to make a will. Where suspicious circumstances exist, the burden of proof shifts to the propounder of the will with regard to knowledge and approval and testamentary capacity.

Suspicious circumstances will arise whenever a “will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator.” Suspicious circumstances “are not circumstances that create a general miasma of suspicion that something unsavoury may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not haveknown and approved of the contents of the will.”

Evidence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard. With respect to allegations of undue influence, suspicious circumstances do not give rise to a shift in the burden of proof. In other words, even where there are suspicious circumstances, the burden remains on the attacker of the will to prove undue influence or fraud.