What is Undue Influence
Section 52 of The Wills, Estates and Succession [1] Act (“WESA”) creates a presumption of undue influence in relation to disputed wills where certain types of relationships exist. That section speaks to undue influence and provides as follows:
“In a proceeding, if a person claims that a will or any provision of it resulted from another person
- being in a position where the potential for dependence or domination of the will-maker was present, and
- using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.”
The British Columbia Law Institute [2] has noted that undue influence may be present whether or not diminished capacity exists.
Possibility of Undue Influence
If you believe that you were left out of a will as a result of undue influence, it is important to speak to a Vancouver undue influence lawyer as soon as possible. Circumstances that may suggest that undue influence occurred include the following:
- Unusual testamentary provisions in the will.
- A disposition that is contrary to the testator’s stated wishes.
- A close relationship with the beneficiary.
- Participation by the beneficiary in the execution of the will.
How To Tell
After the death of a will-maker, someone may allege that the will was the result of the exercise of another person’s undue influence over the will-maker. However, undue influence can be difficult to prove because the will-maker is unavailable to testify and many of the facts surrounding the creation of the will are often known only to the alleged influencer.
Lawyers who draft wills have a professional responsibility to satisfy themselves that the will expresses the real testamentary intentions of their clients. If a Vancouver area lawyer suspects that undue influence may be present during the drafting of a will, the British Columbia Law Institute [1],citing the American Bar Association Committee on Law and Aging[2], suggests that a lawyer attempt to investigate further including:
- Interview the Will-Maker: The lawyer should interview the will-maker in private. If it is necessary to have a third party for the interview, such as an accountant, it should be an individual that has no financial interest in the estate. During the interview, it is important to ask open-ended questions such as “[H]ow did you decide to divide your estate in this manner?”
- Relationship of Dependency: It is sometimes necessary to determine if the will-maker is in a dependent relationship with someone who is exerting undue influence by inquiring if the will-maker lives alone or with a caregiver, if anyone in particular helps more than others, and to confirm if the will-maker had a recent change in their living arrangement. It is also important to note that a dependent relationship by itself does not confirm or even suggest that undue influence exists.
- Abuse in Other Contexts: A lawyer may wish to determine if the will-maker is the victim of physical, psychological or financial abuse in other contexts.
- Information from Others: When a lawyer suspects undue influence, it may be necessary, with the will-maker’s consent, to speak to a physician, accountant, bank manager and others who do not have a financial interest, who can provide additional information.
Talk to a Vancouver Area Undue Influence Lawyer
If you suspect that a loved one is a victim of undue influence or financial abuse, it is important to speak to a Vancouver undue influence lawyer as soon as possible. The lawyers at McLarty Wolf are committed to helping those who are in need of an undue influence lawyer. Call our office today at 604-688-9542 or send us an email through our online contact form.
