League and Williams Lawyers

Tag: Testator

  • Undue influence: When will-makers are persuaded to disinherit

    Undue influence: When will-makers are persuaded to disinherit


    Undue influence: grounds for an estate dispute

    One of the reasons people challenge or dispute a will in British Columbia, is that the will was either prepared or signed as a result of unreasonable interference, or undue influence, by another person.   For example, the son of a testator might have pressured his parent to give him a larger portion of the family wealth because the son is the oldest child, or because his siblings are less liked or less successful than the son.  The son might use psychological, financial, or even physical pressure to influence the decision of their parent in writing their will.  In estate law, this is called undue influence.  If a court finds the will maker was under undue influence when the will was prepared or signed, the court can cancel or reduce the gift to the person who applied the undue influence.

    Making the case: what needs to be proven?

    Undue influence will not be found simply because someone persuaded the will-maker or testator to make a change to their will that benefits the person who persuaded the testator.  Good or bad, when a person asserts that a will is invalid, because the will maker was under undue influence, they have to prove several things.  The influence must be sufficient that the testator’s judgment or wishes were overpowered.  Undue influence has been described as:

    an influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality does not, and expresses something else which he or she did not really mean.

    Therefore, mere persuasion or advice from an interested person will not suffice in proving undue influence.  The heavy burden of proving that force and coercion destroyed the will-maker’s free will lies with the person who is disputing or challenging the will.

    However, the burden of proof shifts if it can be shown that there was a special relationship between the will-maker and another person who substantially benefits from a will.  This is called the presumption of undue influence.  This type of special relationship arises where: the person was in a position where there was potential for dependence or domination of the will maker.

    This presumption can arise in a large variety of situations.  A common example is where the will maker is a parent who is dependent on one of their children for their day-to-day care.  Once this special relationship is established, it is the person who benefited from the will that has to prove the gift was not made out of undue influence.  If he or she cannot do this, the court can cancel or reduce the gift, or even set the entire will aside.

    I hope you have learned something about BC estate law from this blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

    Matthew Melnyk is a lawyer practicing with League and Williams in our Victoria, BC offices.  He focuses his estate dispute practice on helping those who have been wrongfully disinherited to successfully challenge unfair wills and estates to ensure his clients get what they are rightfully entitled to under BC law.  If you have an estate dispute issue, contact League and Williams for a free consultation at 250-888-0002 or via email at info@leaguelaw.com. 

  • There’s a Will, but it Could be an Invalid Will

    There’s a Will, but it Could be an Invalid Will

    Being left out of the will of a close family member can be a shocking experience and may leave a person who was expecting an inheritance feeling betrayed.  Family relationships between beneficiaries of the will and those left disinherited can be incredibly strained.  Sometimes the revelations of a will come as a complete surprise and sometimes there are good reasons for the confusion and bewilderment – after all, just because a will exists, does not mean that it is valid or that it reflects the true wishes of the deceased.  What circumstances in British Columbia would make for an invalid will?  When should beneficiaries question the validity of a will and how can they contest it?

    In order for a will to be considered valid and binding, there are a number of factors that must be satisfied to meet the requirements of BC Estate Law and the Wills, Estates and Succession Act that came into effect March 31, 2014.  If these factors are not satisfied, the validity of the will may be contested in court, and there is a good chance the will would be declared an invalid will.

    Who Can Make a Will?

    Under British Columbia law, there are two factors that the person making the will (the testator) or having a will written on their behalf must meet in order for the will to be considered valid.  First, the testator must have been mentally competent during the time the will was made.  If a person is contesting the testator’s mental capacity at the time the will was written, that person will have to provide the court with medical evidence that supports the claim that the testator lacked mental capacity at the time that the will was made.

    Second, in British Columbia, the testator must be 16 years of age or older at the time the will was made.

    Who has to Witness a Will?

    If the testator is of sound mind and of legal age and makes a will, that will must be signed by the testator in the presence of two witnesses who must meet specific requirements.  The witnesses must sign the will as proof of their presences, and neither witness can be a beneficiary of the will, nor be a spouse of a named beneficiary of the will.  If a will is not appropriately witnessed, it may be declared invalid by the court.

    How does a person get a will declared invalid by the court?

    If a person has a legitimate reason to believe that the will that was left is invalid, it is important to seek legal advice.  A lawyer who is experienced in BC Estate Law can help identify legal problems with a will, effectively guide the client through the process of contesting the document in court and enable the client to get the share of the estate that they are entitled to. Contact us via phone at 250-888-0002 or via email at info@leaguelaw.com.