In Barry, Justice Parke wrote:
"... first ... the (burden of proof) lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator.
"Second ... if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased."
In Vout v Hay, Justice Sopinka of the Supreme Court of Canada adopted these words:
"Suspicious circumstances may be raised by circumstances surrounding the preparation of the will, circumstances tending to call into question the capacity of the testator, or circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.
"... in accordance with the general rule applicable in civil cases, it has now been established that the civil standard of proof on a balance of probabilities applies. The evidence must, however, be scrutinized in accordance with the gravity of the suspicion.... The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case."
There has been much legal and academic debate about the burden of proof once suspiciouis circumstances are alleged but Justice LaForme of Ontario Court of Appeal has aptly stated the law in Sorkos:
"Once it is proven that a will was duly executed, the knowledge and approval of the contents of the will and testamentary capacity will be presumed. However, where there is evidence of suspicious circumstances, this presumption is vacated and the propounder must then prove that the testator knew and approved the contents of the will. If the suspicious circumstances relate to mental capacity, the propounder must also prove testamentary capacity. The standard of proof is not altered by the presence of suspicious circumstances; rather, it remains the civil standard of balance of probabilities."
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