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

AuthorLouise Mimnagh
PositionThird year student at Osgoode Hall Law School in Toronto, who completed this paper for Professor Benjamin Berger during her second year of study
Louise M. Mimnagh*
CITED: (2014) 19 Appeal 95–104
When a will is c hallenged as bei ng executed under suspicious circu mstances, C anadian
courts have historic ally sought clea r, compelling, and cogent evidenc e to demonstrate
the will’s valid ity. e associated standa rd of proof has been described as one resid ing
beyond a bala nce of probabilities, and is conceptu alized as t he ‘third standa rd of proof’
in addition to the civil and cr iminal sta ndards. is t hird standa rd of proof is also
particula rly appealing when a llocating the ri sk of error in an estates contex t in which
testators are decea sed and no longer available to cla rify thei r intentions or perspectives.
However, after the 2008 Supreme Court of C anada decision, FH v McDougall
(“McDougall”), it was resolutely pronounced that only two sta ndards of proof operate
in Canada, w ith the third sta ndard of proof dismissed for t he practical problems of its
application.1 As conce ded below, there are compelling and va lid reasons to disreg ard a
third standa rd of proof for typical wi ll challenge s investigating ci rcumstance s such as
the execution of the will or t he testamentary capacit y of the testator. However, this paper
argues that for c hallenges that involve allegations of moral guilt,2 a nd in cases of fraud or
undue inuence over the testator, then somet hing more then a balance of probabilities is
desirable, and the more demand ing third standard of proof should be utiliz ed.3
To demonstrate the advantage of applying a thi rd standard of proof for probate actions
involving alleged mora l guilt, Part I of th is paper will beg in with a brief review of the
two traditiona l standards of proof, and Part I I will introduce the r ationale for a third
* Louise M. Mimnagh is a third year s tudent at Osgoode Hall Law Schoo l in Toronto,
whocompleted this paper f or Professor Benjamin Berger during h er second year of study. The
author would like to extend h er sincere thanks to Professor Berge r for all of his assistance while
researching and writing the o riginal version of this essay. The author would a lso like to thank the
editors of APPEAL, as well as thei r external reviewer, for their valuabl e feedback and suggestions
throughout the editing process.
1 FH v McDouga ll, 2008 SCC 53, 3 SCR 41 [McDougall] (WL Can).
2 For the pu rposes of this paper, moral guilt specically refer s to the conduct associated with
undue inuence or fraud in wil l challenges, behaviour which is quasi -criminal in nature, and
carries an element of mor al blameworthiness. It is not the inte ntion of this paper to attempt to
categorize the moral natu re or stigma of any other civil actions .
3 Please no te that challenging the validity of a wi ll through allegations of undue inuen ce
requires demonstrating a n element of coercion over the testator. In contras t, fraud or forgery are
separate grounds of contestin g a will, yet they are often closely asso ciated with and often are
raised during an undue inuence challenge.

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