A will is an important document, that must be drafted by a person capable of expressing directions without any undue influence, otherwise its validity could be challenged before the courts. When such a dispute occurs, the party attacking the validity of the will has to adduce evidence supporting that claim on a balance of probabilities: the party must demonstrate that the invalidity of the will is more likely than its validity.
However, certain legal experts have argued that the burden of proof could be shifted: after the applicant has adduced evidence shedding doubt on the testator’s capacity, the opposing party would have to bring proof that the will is valid.
Alice Bourgault-Roy discusses this question in light of Brusenbauch c. Young, 2019 QCCA 914, a recent decision from the Quebec Court of Appeal.
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