Probate Actions and 'Suspicious Circumstances': A Third Standard of Proof for Allegations Involving Moral Guilt

Appeal: Review of Current Law and Law Reform, 19:1 Appeal 95, 2014

Osgoode Legal Studies Research Paper No. 29/2015

12 Pages Posted: 30 Jun 2015 Last revised: 18 Jul 2015

Date Written: 2014

Abstract

When a will is challenged as being executed under suspicious circumstances, Canadian courts have historically sought clear, compelling, and cogent evidence to demonstrate the will’s validity. The associated standard of proof has been described as one residing beyond a balance of probabilities, and is conceptualized as the ‘third standard of proof’ in addition to the civil and criminal standards. This third standard of proof is also particularly appealing when allocating the risk of error in an estates context in which testators are deceased and no longer available to clarify their intentions or perspectives. However, after the 2008 Supreme Court of Canada decision, FH v McDougall (“McDougall”), it was resolutely pronounced that only two standards of proof operate in Canada, with the third standard of proof dismissed for the practical problems of its application. As conceded below, there are compelling and valid reasons to disregard a third standard of proof for typical will challenges investigating circumstances such as the execution of the will or the testamentary capacity of the testator. This paper argues that for challenges that involve allegations of moral guilt, and in cases of fraud or undue influence over the testator, then something more then a balance of probabilities is desirable, and the more demanding third standard of proof should be utilized.

Keywords: Probate Actions, Estate Litigation, Standard of Proof

Suggested Citation

Mimnagh, Louise, Probate Actions and 'Suspicious Circumstances': A Third Standard of Proof for Allegations Involving Moral Guilt (2014). Appeal: Review of Current Law and Law Reform, 19:1 Appeal 95, 2014 , Osgoode Legal Studies Research Paper No. 29/2015, Available at SSRN: https://ssrn.com/abstract=2624343

Louise Mimnagh (Contact Author)

Mimnagh Law ( email )

341 Talbot Street
Suite 223
London, Ontario N6A 2R5
Canada

HOME PAGE: http://www.mimnagh-law.com

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