Henry and The Burden of Proof

Be grateful for small mercies. That’s what my grandmother used to say. And the decision of Newbould J. in Henry v. Henry1 a year ago gives trust and estates practitioners a small mercy for which to be grateful.

All Deadbeat readers know by heart the eight principles of the burdens of proof in issues of testamentary capacity, undue influence and suspicious circumstances hewn by Cullity J. in Scott v. Cousins2 from the Supreme Court of Canada’s decision in Vout v. Hay.3

One of them may now have become simpler.

The seventh principle says this:

7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However the extent of the proof required is proportionate to the gravity of the suspicion.4 (emphasis added.)

The last sentence is based on Sopinka J.’s statement in Vout v. Hay that in applying the civil burden of proof on a balance of probabilities, the evidence must be “scrutinized in accordance with the gravity of the suspicion”.5

Thirteen years after Vout v. Hay the Supreme Court of Canada rendered its decision in F.H. v. McDougall.6 The case involved allegations of sexual abuse of a school boy by a school supervisor more than 30 years before the action was commenced. The trial judge concluded the plaintiff was a credible witness notwithstanding significant discrepancies in his evidence. The majority of the B.C. Court of Appeal allowed an appeal from findings of sexual assault because the trial judge did not scrutinize and accept the plaintiff’s evidence in the manner required, and thereby erred in law.

In the Supreme Court of Canada, following a lengthy analysis of UK and Canadian jurisprudence on the standard of proof where the allegations made against a defendant are particularly grave, Rothstein J. wrote that to suggest that depending upon the seriousness the evidence in civil cases must be scrutinized with greater care, implies that in less serious cases the evidence need not be scrutinized with such care. He concluded:

“In the result, I would affirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.”7

In Henry v. Henry Newbould J. had to decide whether a will was null and void by reason of the testator lacking testamentary capacity or by reason of undue influence. He cited the principle that the extent of the proof required is proportionate to the gravity of the suspicion as stated by Sopinka J. and summarized by Cullity J. in the seventh principle, and then concluded, “However this statement may no longer be good law as a result of the decision in H (F) v. McDougall.”

Newbould J. specifically stated it was not necessary for him to decide this point, because his view of the evidence was the same regardless of the level of scrutiny.8

Newbould J’s statement is in obiter but it does look like we may now be able to dispense with the last sentence of principle 7 in Scott v. Cousins.

Be grateful for small mercies.



1 (2009), 96 O.R. (3d) 437.
2 (2001), 37 E.T.R. (2d) 113 (S.C.J.).
3 [1995] 2 S.C.R. 876.
4 (2001), 37 E.T.R. (2d) 113 (S.C.J.), at para. 39.
5 [1995] 2 S.C.R. 876 at para. 24.
6 (2008), 297 D.L.R. (4th) 193.
7 (2008), 297 D.L.R. (4th) 193 at para. 49.
8 (2009), 96 O.R. (3d) 437 at para. 39.


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