BC Court adopts 200-year-old legal presumption for the first time

Earlier this month, reasons for judgement were released in the case Yen Estate v. Chan. The deceased made his Will in 1973, and died in 2010. He is survived by three daughters.

One other daughter predeceased, and her children challenged the Will. They argued that their grandfather did not have proper capacity when he signed the Will, that the execution requirements under the Wills Act were not met, and that there was no proof that he approved of the contents. The two children lost at Trial and appealed.

They also lost the Appeal, primarily because of the legal presumption of due execution. That is, where it appears on the document that it was properly executed, the Will is presumed valid. Our Court of Appeal adopted this two-century-old presumption for the first time in this case, and appropriately!

Likely, the children challenged the Will because they were not named beneficiaries (had their mother lived, they would have inherited). But there was nothing “wrong” with the Will, and when  the deceased made it he did have capacity.

This ad appeared in the Richmond News on October 18, 2013.