Duhaime's Law Dictionary

Suspicious Circumstances Definition:

Circumstances in the preparation or signing of a document that give rise to suspicion as to mental capacity of, or fraud or duress upon the signatory.

Related Terms: Will, Undue Influence

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 suspicious 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."

Justice Ortega of the Court of Appeals of Oregon, in Slusarenko v. Slusarenko, proposed this summary of the law:

"When a confidential relationship exists, we consider whether suspicious circumstances were present. If the will contestant presents slight evidence of suspicious circumstances, then a presumption of undue influence arises, and the beneficiary must come forward with evidence to rebut the presumption.

"The following factors may constitute suspicious circumstances: (1) the participation of the beneficiary in the preparation of the will; (2) a lack of independent and disinterested advice; (3) secrecy and haste in the preparation of the will; (4) an unexplained change in the testator's attitude toward others; (5) a change in the testator's estate plan; (6) an unnatural or unfair disposition of property; and (7) the testator's susceptibility to undue influence.

"We also examine the consequences of upholding the influenced gift."

In Noy's Maxims:

"Fear, fraud and flattery: three unfit accidents to be at the making of a will."1


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