BC ELDER LAW UNDUE
INFLUENCE

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 (testor) has to have mental capacity. In addition, the testator must also make the will voluntarily and not be under undue influence. If the testator was forced 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.

BC ELDER LAW UNDUE INFLUENCE

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

Some items to consider

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.

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. The net result is that this case sets the law on resulting trust and undue influence for elderly parents and their children.

NEXT STEPS

Our 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.