BC ELDER LAW UNDUE
INFLUENCE

BC Elder Law Undue Influence is a growing problem for wealthy seniors and their family members. Baby boomers are aging and often have amassed significant net worth. They routinely want to pass on their estate to their loved ones. In order for a will to be valid, the person writing the will (Willmaker also known as the testator) has to have mental capacity. In addition, the Willmaker/testator must also make the will voluntarily and not be under undue influence. If the testator was forced, cajoled or even strongly influenced by someone else to include certain gifts in his or her will that the testator didn’t really want to include, this is called undue influence. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency.

BC Elder Law Undue Influence

BC Elder Law Undue Influence Lawyer Lorne N MacLean, QC 604-602-9000

BC ELDER LAW UNDUE INFLUENCE

In BC, the person contesting the will, must be able to prove that the testator was under undue influence when they made their Will. There are many factors to consider and an experienced estate lawyer will know the correct steps to help prove undue influence.

Our top rated BC Elder Law Undue Influence lawyers point out some items to consider when undue influence is suspected:

Red flags are raised when the Willmaker:

  • Is dependent often due to infirmity or declining mental acuity on the beneficiary in fulfilling his or her emotional or physical needs;
  • Is socially isolated;
  • Has experienced recent family conflict;
  • Has experienced recent bereavement;
  • Has made a new Will that is inconsistent with his or her prior Wills;
  • Has made testamentary changes similar to changes made to other documents such as power of attorney documents;
  • Is involved in a new relationship with a predatory new partner.

The Wills, Estate and Succession Act (WESA) extends the existing presumption of undue influence in respect of gifts made while someone is living to apply to gifts made under a will (s. 52). Now if a gift is challenged, the recipient of the gift must prove that he or she did not exert undue influence over the deceased. This new onus is a game changer for elder and infirm undue influence cases.

Section 52 of WESA states:

Undue influence

52  In a proceeding, if a person claims that a will or any provision of it resulted from another person

(a)being in a position where the potential for dependence or domination of the will-maker was present, and

(b)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.

A landmark decision handed down by BC’s highest court was endorsed by the Supreme Court of Canada who denied leave to hear the case at Canada’s highest level. This case reviewed the test for undue influence and whether property transferred by a father to his son should be reversed. In the end the court found undue influence was not proven and the transfer was made of the father’s own free will. This case helps BC Elder Law Undue Influence lawyers and their clients frame claims on resulting trust and undue influence for elderly parents and their children.

BC Elder Law Undue Influence NEXT STEPS

Our BC Elder Law Undue Influence, unfair wills and wills dispute lawyers are prepared to meet with you to discuss any concerns you have with gifts or wills bequests that raise the concern of BC Elder Law Undue Influence. Contact us today across BC at any one of our 4 offices located in Vancouver, Surrey, Kelowna and Fort St. John, BC.

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