Hay Estate, Re, (1995) 183 N.R. 1 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 26, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 183 N.R. 1 (SCC);7 ETR (2d) 209;[1995] ACS no 58;1995 CanLII 105 (SCC);[1995] 2 SCR 876;183 NR 1;[1995] CarswellOnt 186;125 DLR (4th) 431;55 ACWS (3d) 1101;JE 95-1367;82 OAC 161;[1995] SCJ No 58 (QL)

Hay Estate, Re (1995), 183 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Sandra Florence Vout (appellant) v. Earl Hay, Carl Hay, Larry Parr and Kenneth Parr (respondents)

(24009)

Indexed As: Hay Estate, Re

Supreme Court of Canada

La Forest, Sopinka, McLachlin,

Iacobucci and Major, JJ.

June 22, 1995.

Summary:

An 81 year old man, Hay, died leaving a will under which his friend Vout, a woman in her twenties, was made the major bene­ficiary of his $320,000 estate. The Hay family challenged the validity of the will.

The Ontario Court (General Divi­sion) admitted the will into probate. (See [1990] O.J. No. 2538). The Hay family appealed.

The Ontario Court of Appeal allowed the appeal and directed a new trial. (See para­graph [14] below). Vout appealed.

The Supreme Court of Canada allowed the appeal and restored the trial judgment.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - An 81 year old man, Hay, died leaving a will under which his friend Vout, a woman in her twenties, was made the major beneficiary of his $320,000 estate - The Hay family challenged the validity of the will, arguing that there were suspicious circumstances sufficient to render the will invalid - The trial judge admitted the will into probate, however, the Ontario Court of Appeal set aside the trial judgment and directed a new trial - The Supreme Court of Canada reviewed the doctrine of suspi­cious circumstances and restored the trial judgment - See paragraphs 1 to 34.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - The Supreme Court of Canada stated that the civil standard of proof on a balance of probabilities applied in suspi­cious circumstances cases, but the evi­dence must be scrutinized in accordance with the gravity of the suspicion - See paragraph 24.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - The Supreme Court of Canada reviewed the doctrine of suspicious cir­cumstances - The court stated that "the suspicious circumstances may be raised by (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 and fraud" - See paragraph 25.

Wills - Topic 541

Testamentary capacity - Evidence and proof - Doctrine of suspicious circum­stances - The Supreme Court of Canada stated that although the propounder of a will has the legal burden of proving due execution, knowledge and approval, and testamentary capacity, there is a rebuttable presumption of knowledge and approval and testamentary capacity upon proof that a will was duly executed with the requisite formalities - Where suspicious circum­stances are present the presumption is rebutted and the propounder reassumes the legal burden of proving knowledge and approval and testamentary capacity - Where the suspicious circumstances relate to fraud and undue influence, the pre­sumption is also rebutted requiring the propounder to prove knowledge and ap­proval and testa­mentary capacity, however, the burden of proof respecting fraud and undue influence remains with those attack­ing the will - See paragraphs 16 to 29.

Wills - Topic 1714

Preparation and execution - Undue influ­ence - Evidence - Burden of proof - [See fourth Wills - Topic 541 ].

Cases Noticed:

Barry v. Butlin (1838), 2 Moo. P.C. 480; 12 E.R. 1089 (P.C.), refd to. [para. 16].

MacGregor v. Martin Estate, [1965] S.C.R. 757, refd to. [para. 24].

Tyrrell v. Painton, [1894] P. 151 (C.A.), refd to. [para. 25].

Craig v. Lamoureux, [1920] A.C. 349 (P.C.), refd to. [para. 28].

Riach v. Ferris, [1934] S.C.R. 725, refd to. [para. 28].

Statutes Noticed:

Succession Law Reform Act, R.S.O. 1990, c. S-26, generally [para. 19].

Authors and Works Noticed:

Hull, Rodney, Contested Wills and Proof in Solemn Form (1979), 5 Est. & Tr. Q. 49, p. 57 [para. 17].

Macdonell, Sheard and Hull on Probate Practice (3rd Ed. 1981), p. 33 [paras. 25, 28].

Wright, Cecil A., Wills - Testamentary Capacity - "Suspicious Circumstances" - Burden of Proof (1938), 16 Can. Bar Rev. 405, p. 406 [para. 16].

Counsel:

Joseph M. Steiner and Stephen Lamont, for the appellant;

William E. Baker, for the respondents.

Solicitors of Record:

Osler, Hoskin & Harcourt, Toronto, Ontario, for the appellant;

William E. Baker, Campbellford, Ontario, for the respondents.

This appeal was heard on January 26, 1995, before La Forest, Sopinka, McLachlin, Iacobucci, and Major, JJ., of the Supreme Court of Canada. The following decision was delivered for the court in both official languages on June 22, 1995, by Sopinka, J.