A handwritten “addendum,” a family cottage, and a late-stage reversal of a carefully structured estate plan. This case examines the line between informal testamentary freedom and judicial scrutiny. Here the Court grapples with a holograph codicil and whether there is sufficient evidence to raise suspicious circumstances thereby displacing the presumption of knowledge and approval, requiring the propounder to confront concerns of influence, understanding, and capacity head-on.
Background
Mathilda Ruth Douglas (“Ruth”) had three children with her husband: Bradley Douglas (“Bradley” or the “Applicant”), Karen Wake (“Karen”), and Randall Douglas (“Randy”)(collectively, Randy and Karen are the “Respondents”).[1]
Ruth and her husband had been longtime owners of a cottage property located on Echo Bay, Ontario. They held the property as tenants-in-common with other cottage owners.[2]
In 2003, Ruth and her husband executed mirrors wills (the “2003 Wills”).[3] Unfortunately, Ruth was predeceased by her husband, who died in 2008; consequently, she acquired all of his property and legal interests.[4] As such, after 2008 she alone owned the cottage.[5]
The relevant dispositive provision under the 2003 Wills directed that upon her death, the cottage “including both buildings and all property and all boats and contents of the cottages” be given and transferred to Bradley.[6] The residue was to be divided equally between Karen and Randy.
In 2017 Ruth executed a new will (the “2017 Will”). The 2017 Will directed that Bradley would have a right of first refusal to purchase it from the Estate. Whether it was sold to Bradley, or someone else if he declined the right of first refusal, the sale proceeds would become part of the Estate’s residue, which was to be divided into three equal shares, one for each Bradley, Karen and Randy.[7]
The 2019 Codicil
On September 6, 2019, Ruth handwrote and signed a holograph Codicil (the “2019 Codicil”), which was titled “Addendum to Will”. The 2019 Codicil directed that the Cottage, both buildings, all property and contents be transferred to Bradley, as in accordance with the 2003 Wills.[8]
The Application & Parties Positions
Bradley applied for an order directing that Ruth’s Will, dated January 16, 2017, be admitted to probate, along with a declaration that a holograph Codicil Ruth wrote on September 6, 2019, is a valid testamentary instrument and that it also be admitted to probate.[9]
Bradley maintains that the 2019 Codicil is valid and was executed as a result of his good relationship with his mother and involvement in the cottage. He argues that when read in conjunction with 2003 Wills, the effect is to unconditionally gift the cottage to him.[10] Further, he contends that the remaining operative provisions of the 2017 Will would have the Estate pay all necessary Estate expenses, including Ruth’s final personal taxes and capital gains tax on the cottage, and before dividing the residue of the Estate be equally into thirds.[11]
The Respondents suggest that Bradley exercised some influence, short of undue influence, that motivated Ruth to make the September 2019 Codicil. Further, they contend there are suspicious circumstances concerning whether Ruth truly understood the operation and impact of the Codicil.[12] Ultimately, they say Bradley has not met his burden of proof as the propounder of the Codicil given the suspicious circumstances.[13]
Analysis
The Court immediately turned to s. 22(5) of The Court of King’s Bench Surrogate Practice Act, C.C.S.M. c. C290,[14] which establishes the evidentiary requirements to probate a holographic testamentary document. The court notes that the only provision in issue at is ss. (b)(ii). The provision holds:
22(5) Upon application for probate or administration with will annexed of a holograph will, evidence shall be given satisfactorily to the judge
(a) as to the handwriting and signature of the testator, and that the entire will is wholly in the handwriting of the testator; and
(b) as to the validity of the will, including evidence that
(i) at the time or apparent time of the signing of the will, the testator was of the age of majority or otherwise authorized to make a will, and
(ii) at or about that time or apparent time, the testator appeared to be of sound mind, memory and understanding.
Following the re-statement of the Rules of the King’s Bench, the Court turned to Vout v Hay.[15] Quoting from an authoritative secondary source which summarizes the Supreme Court’s decision on undue influence and suspicious circumstances, the King’s Bench re-iterated and summarized the Vout principles, as follows:
- The propounder of the will has the onus of proof with respect to due execution of the will, knowledge and approval and testamentary capacity.
- When it is proved that the will was duly executed with the required formalities, after having been read over to or by a testator who appears to understand it, then a rebuttable presumption arises that the testator knew and approved of the contents of the will and had the necessary testamentary capacity.
- However, that rebuttable presumption is no longer effective when suspicious circumstances are present. In the face of suspicious circumstances, the propounder of the will must prove on the balance of probabilities that the testator had knowledge of and approved of the contents of the will and cannot rely upon the rebuttable presumption that such is the case.
- If the suspicious circumstances relate to mental capacity, then once again, the propounder must prove on the balance of probabilities that the testator possessed testamentary capacity, and cannot rely upon the rebuttable presumption to that effect.
- The court emphasized that there is nothing “mysterious about the role of suspicious circumstances.” The rebuttable presumption casts an evidentiary burden on those who are attacking the will. If this burden is satisfied by adducing evidence of suspicious circumstances (which would tend to bring into question the presence of knowledge and approval or testamentary capacity), then the rebuttable presumption cannot be relied upon by the propounder of the will and instead the propounder must adduce evidence to prove the presence of knowledge and approval or testamentary capacity.
…
Therefore, it is clear from the court’s decision that in addition to due execution and testamentary capacity, the propounder of the will has the onus of proving “knowledge and approval.” The presence or absence of suspicious circumstances affects whether that onus can be discharged by proving due execution and relying upon the rebuttable presumption that the testator had knowledge of and approved of the contents of his will; or whether that rebuttable presumption is no longer applicable due to the presence of suspicious circumstances, in which case the propounder must adduce evidence to meet his burden of proving that the testator had knowledge of and approved of the contents of his will.[16]
The Court then turned to WEL Partner’s own John E.S. Poyser’s text, Capacity and Undue Influence[17] as well as the Ontario case of Scott v. Cousins,[18] to explains that Vout treats the presumption as to knowledge and approval as spent “once there is evidence that raises a well-grounded suspicion that there was no such knowledge and approval and this … does not require proof on a balance of probabilities, or otherwise.”[19]
Consequently, in applying the relevant authorities to the facts at bar, the Court is satisfied that the Respondents had sufficiently raised suspicious circumstances that Ruth did not understand the operation and effect, or consequences, of the Codicil she made.[20] The Court examines the presence of suspicious circumstances along three broad categories, those being, financial knowledge and estate value, operation of the Codicil and Wills being complex, and what is essentially a miscellaneous category.[21]
Ultimately, when the doctrine of suspicious circumstances is properly raised, the burden falls back to the propounder, in this case Bradley, who the Court assessed did not advance sufficient evidence to address those circumstances.[22]
Final Remarks
Re Douglas Estate is a pointed reminder that informal testamentary documents, particularly holograph codicils, may invite heightened judicial scrutiny when they alter an existing estate plan in meaningful ways. While the law affords flexibility in how a will may be expressed, that flexibility does not dilute the propounder’s burden when suspicious circumstances are properly raised. Where complexity, significant financial consequences, or close family dynamics cast doubt on a testator’s understanding, clear, cogent evidence is required to demonstrate that the testator truly comprehended the nature and effect of the testamentary change.
—
[1] Re Douglas Estate, 2025 MBKB 25 (CanLII), at para 1. (“Re Douglas Estate”)
[2] Ibid., at para 5
[3] Ibid., at para 6
[4] Ibid.
[5] Ibid.
[6] Ibid., at para 7.
[7] Ibid., at para 9.
[8] Ibid., at para 10.
[9] Ibid., at para 2.
[10] Ibid., at para 15.
[11] Ibid., at para 16.
[12] Ibid., at para 17.
[13] Ibid., at para 18.
[14] The Court of King’s Bench Surrogate Practice Act, C.C.S.M. c. C290. (“Rules of the King’s Bench”)
[15] Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876. (“Vout”)
[16] Brian A. Schnurr, Estate Litigation, 2nd Edition, (Toronto: Carswell), ch. 2 at § 2:18; see Re Douglas, at para 23.
[17] Capacity and Undue Influence, 2nd ed. (Toronto: Thomson Reuters Canada, 2019).
[18] Scott v Cousins, 2001 CarswellOnt 50, [2001] OJ No 19.
[19] Re Douglas Estate, at para 26.
[20] Ibid., At para 29.
[21] Ibid., at para 31.
[22] Ibid., at para 33.
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Written by: Grant Swedak
Posted on: December 17, 2025
Categories: Commentary
A handwritten “addendum,” a family cottage, and a late-stage reversal of a carefully structured estate plan. This case examines the line between informal testamentary freedom and judicial scrutiny. Here the Court grapples with a holograph codicil and whether there is sufficient evidence to raise suspicious circumstances thereby displacing the presumption of knowledge and approval, requiring the propounder to confront concerns of influence, understanding, and capacity head-on.
Background
Mathilda Ruth Douglas (“Ruth”) had three children with her husband: Bradley Douglas (“Bradley” or the “Applicant”), Karen Wake (“Karen”), and Randall Douglas (“Randy”)(collectively, Randy and Karen are the “Respondents”).[1]
Ruth and her husband had been longtime owners of a cottage property located on Echo Bay, Ontario. They held the property as tenants-in-common with other cottage owners.[2]
In 2003, Ruth and her husband executed mirrors wills (the “2003 Wills”).[3] Unfortunately, Ruth was predeceased by her husband, who died in 2008; consequently, she acquired all of his property and legal interests.[4] As such, after 2008 she alone owned the cottage.[5]
The relevant dispositive provision under the 2003 Wills directed that upon her death, the cottage “including both buildings and all property and all boats and contents of the cottages” be given and transferred to Bradley.[6] The residue was to be divided equally between Karen and Randy.
In 2017 Ruth executed a new will (the “2017 Will”). The 2017 Will directed that Bradley would have a right of first refusal to purchase it from the Estate. Whether it was sold to Bradley, or someone else if he declined the right of first refusal, the sale proceeds would become part of the Estate’s residue, which was to be divided into three equal shares, one for each Bradley, Karen and Randy.[7]
The 2019 Codicil
On September 6, 2019, Ruth handwrote and signed a holograph Codicil (the “2019 Codicil”), which was titled “Addendum to Will”. The 2019 Codicil directed that the Cottage, both buildings, all property and contents be transferred to Bradley, as in accordance with the 2003 Wills.[8]
The Application & Parties Positions
Bradley applied for an order directing that Ruth’s Will, dated January 16, 2017, be admitted to probate, along with a declaration that a holograph Codicil Ruth wrote on September 6, 2019, is a valid testamentary instrument and that it also be admitted to probate.[9]
Bradley maintains that the 2019 Codicil is valid and was executed as a result of his good relationship with his mother and involvement in the cottage. He argues that when read in conjunction with 2003 Wills, the effect is to unconditionally gift the cottage to him.[10] Further, he contends that the remaining operative provisions of the 2017 Will would have the Estate pay all necessary Estate expenses, including Ruth’s final personal taxes and capital gains tax on the cottage, and before dividing the residue of the Estate be equally into thirds.[11]
The Respondents suggest that Bradley exercised some influence, short of undue influence, that motivated Ruth to make the September 2019 Codicil. Further, they contend there are suspicious circumstances concerning whether Ruth truly understood the operation and impact of the Codicil.[12] Ultimately, they say Bradley has not met his burden of proof as the propounder of the Codicil given the suspicious circumstances.[13]
Analysis
The Court immediately turned to s. 22(5) of The Court of King’s Bench Surrogate Practice Act, C.C.S.M. c. C290,[14] which establishes the evidentiary requirements to probate a holographic testamentary document. The court notes that the only provision in issue at is ss. (b)(ii). The provision holds:
22(5) Upon application for probate or administration with will annexed of a holograph will, evidence shall be given satisfactorily to the judge
(a) as to the handwriting and signature of the testator, and that the entire will is wholly in the handwriting of the testator; and
(b) as to the validity of the will, including evidence that
(i) at the time or apparent time of the signing of the will, the testator was of the age of majority or otherwise authorized to make a will, and
(ii) at or about that time or apparent time, the testator appeared to be of sound mind, memory and understanding.
Following the re-statement of the Rules of the King’s Bench, the Court turned to Vout v Hay.[15] Quoting from an authoritative secondary source which summarizes the Supreme Court’s decision on undue influence and suspicious circumstances, the King’s Bench re-iterated and summarized the Vout principles, as follows:
…
Therefore, it is clear from the court’s decision that in addition to due execution and testamentary capacity, the propounder of the will has the onus of proving “knowledge and approval.” The presence or absence of suspicious circumstances affects whether that onus can be discharged by proving due execution and relying upon the rebuttable presumption that the testator had knowledge of and approved of the contents of his will; or whether that rebuttable presumption is no longer applicable due to the presence of suspicious circumstances, in which case the propounder must adduce evidence to meet his burden of proving that the testator had knowledge of and approved of the contents of his will.[16]
The Court then turned to WEL Partner’s own John E.S. Poyser’s text, Capacity and Undue Influence[17] as well as the Ontario case of Scott v. Cousins,[18] to explains that Vout treats the presumption as to knowledge and approval as spent “once there is evidence that raises a well-grounded suspicion that there was no such knowledge and approval and this … does not require proof on a balance of probabilities, or otherwise.”[19]
Consequently, in applying the relevant authorities to the facts at bar, the Court is satisfied that the Respondents had sufficiently raised suspicious circumstances that Ruth did not understand the operation and effect, or consequences, of the Codicil she made.[20] The Court examines the presence of suspicious circumstances along three broad categories, those being, financial knowledge and estate value, operation of the Codicil and Wills being complex, and what is essentially a miscellaneous category.[21]
Ultimately, when the doctrine of suspicious circumstances is properly raised, the burden falls back to the propounder, in this case Bradley, who the Court assessed did not advance sufficient evidence to address those circumstances.[22]
Final Remarks
Re Douglas Estate is a pointed reminder that informal testamentary documents, particularly holograph codicils, may invite heightened judicial scrutiny when they alter an existing estate plan in meaningful ways. While the law affords flexibility in how a will may be expressed, that flexibility does not dilute the propounder’s burden when suspicious circumstances are properly raised. Where complexity, significant financial consequences, or close family dynamics cast doubt on a testator’s understanding, clear, cogent evidence is required to demonstrate that the testator truly comprehended the nature and effect of the testamentary change.
—
[1] Re Douglas Estate, 2025 MBKB 25 (CanLII), at para 1. (“Re Douglas Estate”)
[2] Ibid., at para 5
[3] Ibid., at para 6
[4] Ibid.
[5] Ibid.
[6] Ibid., at para 7.
[7] Ibid., at para 9.
[8] Ibid., at para 10.
[9] Ibid., at para 2.
[10] Ibid., at para 15.
[11] Ibid., at para 16.
[12] Ibid., at para 17.
[13] Ibid., at para 18.
[14] The Court of King’s Bench Surrogate Practice Act, C.C.S.M. c. C290. (“Rules of the King’s Bench”)
[15] Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876. (“Vout”)
[16] Brian A. Schnurr, Estate Litigation, 2nd Edition, (Toronto: Carswell), ch. 2 at § 2:18; see Re Douglas, at para 23.
[17] Capacity and Undue Influence, 2nd ed. (Toronto: Thomson Reuters Canada, 2019).
[18] Scott v Cousins, 2001 CarswellOnt 50, [2001] OJ No 19.
[19] Re Douglas Estate, at para 26.
[20] Ibid., At para 29.
[21] Ibid., at para 31.
[22] Ibid., at para 33.
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