When someone dies and questions begin to be asked about the deceased’s property, it is obviously important to determine whether that person left a will.  In most cases, family members will accept the will maker’s wishes for the disposition of their property.  However, in other cases the family might find the contents of the will to be surprising and disappointing and in some of those cases, there may be a suspicion that the will maker was subjected to undue influences when he or she executed their will.

It is possible in British Columbia to challenge the validity of a will on the basis that it was the result of the exercise of undue influence upon the will maker.  If the Court finds the claim of undue influence to be established, the will be set aside.  If the will is set aside and no earlier will exists, the estate will be distributed according to the rules of intestacy set out in the Wills, Estates and Succession Act (“WESA”).

What is Undue Influence?

Undue influence occurs when a will maker is manipulated or coerced into making gifts that are not the result of the will maker’s own free and informed thought.

Undue influence can arise in a number of situations and typically, but not necessarily, involves a family member or caregiver of an elderly person of diminished physical and/or mental capabilities.  These individuals may be dependent either physically or psychologically on a particular person and therefore vulnerable to either manipulation or coercion.

Not all forms of influence constitute undue influence.  Simply suggesting to the will maker that he or she make a specific gift is not sufficient.  There must be evidence that the free will of the will maker was overborne by the pressure exerted by the person who receives the gift.

Proving Undue Influence

Wills that are challenged on the basis that they are the result of undue influence (or on other grounds such as lack of testamentary capacity on the part of the will maker) must go through a court process called ‘proof in solemn form’.  This process requires the person propounding the validity of a will to prove on a balance of probabilities that the will was completed in compliance with the necessary legal formalities, the will maker knew and approved of the contents of the will and the will maker had the necessary mental capacity to make a will (called testamentary capacity).

If the will was properly executed after being read over by the will maker who appeared to understand it, the law in British Columbia presumes that the will maker had the necessary capacity and approved of the contents of the will.

This presumption may be rebutted if the challenger of the will can point the court to ‘suspicious circumstances’ tending to show that the free will of the will maker was overridden by acts of coercion or fraud.

Section 52 of WESA sets out certain factors that will constitute suspicious circumstances.    If the person who received the gift in the will occupied a position where the potential for dependence or domination was present, that person (called the beneficiary) has the onus of establishing on a balance of probabilities that he or she did not exercise undue influence over the will maker.

Factors Used to Determine Undue Influence

Factors that the Court will consider in determining whether a gift in a will was the result of undue influence include the following:

  • Did the beneficiary have the opportunity to exercise undue influence;
  • Was the beneficiary instrumental in the preparation of the will;
  • Did the will maker receive independent legal advice about the will before it was signed;
  • If the beneficiary was not a family member, had he or she previously been the object of the will maker’s ‘bounty’;
  • Was the will maker because of mental frailties susceptible to the exercise of manipulation or influence.

What Can You Do?

If a loved member of your family has passed away leaving a will that treats his or her spouse or children unfairly and it appears that person may have been subject to undue levels of pressure or manipulation, you should seek legal advice about your options. In addition to seeking to set aside a will on the basis of undue influence, other legal remedies may be available.  For example, if the will maker lacked the necessary testamentary capacity, the will can be set aside.  Even if a will is found to be valid, if the will fails to satisfy the legal and/or morals obligations the will maker owed to family members, the Court may make an order varying the terms of the will.

McLarty Wolf Litigation Lawyers are committed to representing spouses and children who were wrongfully disinherited as a result of the exercise of undue influence. If you believe this situation affects you, contact our office today to schedule a consultation.

Mclarty Wolf

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