League and Williams Lawyers

Tag: undue influence

  • Why Undue Influence During Will Making is Difficult to Prove

    Why Undue Influence During Will Making is Difficult to Prove

    If a claimant can prove that an interested party unduly influenced the testator at the time of writing, courts in BC can rule the will invalid. Undue influence is described in British Columbia 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.”

    Proving an undue influence claim is difficult because the influence must overpower the testator’s wishes, meaning the will doesn’t reflect their actual wishes. BC allows suggestions and persuasion and does not consider them forms of undue influence. The most common successful undue influence claims involve a will-writer tricked into giving a larger portion of their estate to an undeserving person. Usually, this is someone who recently entered the testator’s life and received a significant portion of the estate.

    An Undue Influence Claim: Who has the Burden of Proof?

    The burden of proof is typically on the claimant to prove that the will-maker was under undue influence at the time of writing. Although, the burden of proof can shift to the defendant if the claimant shows a special relationship between the will-maker and the other person substantially benefiting from the will – known as the presumption of undue influence. The classic example of this is when 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, the person who benefited from the gift must prove that it was not made because 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.

    Will Writing While Terminally Ill

    In BC, someone’s persuasion during the will writing process doesn’t qualify as undue influence.

    While unsuccessful, there was a recent case in the BC Supreme Court where a woman’s godchildren were claiming her will was invalid on the grounds of undue influence. The woman was in the hospital with an inoperable brain tumour in 2016. During her time in the hospital, she rewrote her will from 2009 – writing two new wills within five days. The woman had no children; however, her godchildren argued before the courts that she was under undue influence when writing these final two wills.

    They believed that the will from 2009, not the other two, represented her final intentions and should be valid. The defendants, the woman’s common-law spouse and his grandchildren, argued that the new wills expressed her mind and it represented her wishes. The new wills were similar in most aspects to the 2009 will; however, the new wills gave more to the common-law spouse and his grandchildren, at the expense of the godchildren’s shares of the estate.

    The Role of Legal and Medical Professionals

    On the day she wrote the first new will, she met with a doctor who confirmed her awareness of her terminal illness and her limited time left. The lawyer who helped prepare the will that day described her as very confused about why the lawyer was visiting and what he was doing with her affairs. The lawyer further explained that the woman could engage in conversation, had a clear memory of some things, but had troubles remembering things like the date and where she was. The woman also could not give the exact names of her grandchildren. Further, she was unable to answer the lawyer’s open-ended questions and needed prompts to give answers. The woman was clearly not in a sound mental state when she prepared the will.

    The lawyer and her two legal assistants confirmed no signs of confusion or misunderstanding from her on the day they signed the wills. The lawyer explained clearly that the will did not have to be changed unless she wanted to make specific adjustments. The judge needed to determine if her mental state resulted from her brain tumour, the stress of her terminal illness, or if her common-law spouse had unduly influenced her.

    Was This Proof of Undue Influence?

    The case facts suggest that her common-law spouse likely persuaded the woman to some extent to make these changes. While there may have been significant influence, the godchildren could not prove that there was undue influence – that she was expressing something that she did not really mean in her will. She had spent nearly 30 years with her spouse, and it made sense that she would want to include his grandchildren in her will.

    The judge explained that it’s not uncommon for people to rewrite their will after learning they’re terminally ill. People who are in this position tend to think about their estate and what will happen upon their passing. In the end, the burden of proof was on the godchildren to prove that the woman was under undue influence and they could not do this to the satisfaction of the courts. Even though the woman might not have been in the clearest mental state, there was no proof beyond a reasonable doubt that she didn’t intend to make these changes to her will. The court dismissed the undue influence claim, ruling that the woman had the necessary testamentary capacity to execute the wills and found no evidence of undue influence.

    What This Means for Future Cases

    This case helps to clarify how a claim for undue influence can be successful. Will-writing is stressful for most people, and it is assuring to know that final wishes will be honoured. In only the most extreme and conclusive cases will a court revise a person’s will. The doctrine of undue influence is meant to further ensure that will-maker’s true intentions are respected. If you think that someone you loved was under undue influence during their will making, contact an experienced estate lawyer today.

    For more information, read our page on proving an undue influence claim in BC.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Invalid Wills and Suspicious Circumstances: Undue Influence

    Invalid Wills and Suspicious Circumstances: Undue Influence

    Wills in BC can be ruled invalid if a claimant can prove the testator was under undue influence. Undue influence is 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.

    What is Considered Undue Influence?

    It’s difficult to prove undue influence in BC. To satisfy the criteria of undue influence, the influence must be so significant that the testator’s wishes were completely overpowered. Suggestions, persuasion and advice are all allowed in BC and are not considered forms of undue influence. A successful claim needs to have proven coercion that prevented the will-writer from exercising their free will. This can be in the form of psychological, financial and physical pressure – it is not limited to threats or terrorization. Even when undue influence has occurred, it can be difficult to establish to the degree required by the courts. It can be difficult for the courts to distinguish between undue influence or simple persuasion, which is allowed in BC.

    The Burden of Proof

    The presumption of undue influence is not a provision in all of Canada. In Ontario for example, they do not have a doctrine similar to this.

    The burden of proof is on the claimant (the person challenging the will) to demonstrate the will-maker was unduly influenced. However, the burden of proof can shift to the defendant in certain instances. If the claimant can show that there was a special relationship established between the will-maker and the person whom the will-maker was dependent on, there is a presumption of undue influence. This means that the defendant now has the onus of proving that there was no undue influence. In order to establish this presumption under the structured approach applied by BC courts, the evidence provided must show that there existed a relationship of influence at the time of will-writing, and that some of the disposition outlined in the will requires explanation or does not seem characteristic of the will-writer’s wishes.

    For example, when the will-maker is a parent who is dependent on one of their children for their day-to-day care. The parent might choose to give a disproportionately large share of the estate to their care-taking child. Due to their relationship, the child must prove the gift wasn’t made under undue influence if a claim is raised. If they can’t do this, the court can cancel or reduce the gift, or even rule the will invalid.

    Examples of Undue Influence Claims in BC

    Some of the most common undue influence claims involve people who have entered an elderly person’s life very recently and been given a large portion of the estate. This can be suspicious, as people tend to give their estate to family longtime friends. Another frequent case is children who are relentless in having a parent give them a larger portion of the estate than their siblings. Parents are put in a position where they see no option other than to honour this child’s request, out of fear of ruining their relationship. This is recognized as a form of undue influence.

    The case of Tribe v Farrell (2003) demonstrates how undue influence can be proven solely through fear and psychological factors. An elderly man he feared his caregiver would leave him if he didn’t give her his house. In the end, he left more of the estate to the caregiver than his own son. Due to this special relationship, the caregiver had to prove she did not unduly influence him. Ultimately, she failed to illustrate to the court that she did not unduly influence the will-writer. It was held that the second draft of his will which listed her as a beneficiary was invalid.

    A Recent Example

    Undue influence can be exerted both physically and psychologically.

    In a recent BC Supreme Court case a woman wrote a new will while terminally ill in the hospital. The new will gave more of the estate to her common-law spouse and his grandchildren, reducing her godchildren’s share of the estate. The godchildren elected to file an undue influence claim.

    The lawyer who helped prepare the new will described her as being very confused about why the lawyer was visiting and what they were doing on the day the will was drafted. The lawyer explained that the woman could engage in conversation, had a clear memory of some things, but had trouble recalling the date and where she was. The woman also could not give the exact names of her godchildren. It was clear that the woman was not legally capable of creating a will at the time.

    The Opinion of the Court

    On the facts, it seemed that the woman was persuaded by her spouse to make these changes to her will. The godchildren couldn’t prove undue influence as there wasn’t evidence to indicating that the will didn’t express her wishes. There was no special relationship in this case, as the woman was not dependent on her spouse or his grandchildren. The circumstances did not adequately satisfy the criteria to establish a presumption of undue influence against her spouse or his grandchildren.

    The judge had to determine to what extent the woman’s mental state impacted her ability to write a valid will, and if she was unduly influenced by her spouse due to her mental incapacity. Even though the woman did not demonstrate mental clarity at the time the new will was written, the court held that, on the balance of probabilities, she truly intended to make these changes to her will. The case was dismissed as there was no direct evidence of undue influence.

    In only the most extreme and conclusive cases will a court revise- or vary– a person’s will. The process by which this type of claim is investigated and decided by the courts is designed to ensure that will-maker’s true intentions are respected after their death. If you think that someone you loved was under undue influence during their will making, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Bargaining for Elder Care – the Promise Made

    There were three adult children, Gloria, Max and Nate – each of whom had been promised a third of their parent’s estate including the family home by their father.  As is common, when their father died, everything was left to their mother.  As time went on, the mother was eventually unable to care for herself at home.  Wanting to keep their mother in her home, Gloria, unwilling or unable to care for their mother herself, made a deal with her brother, Max: if he moved back to Victoria, BC, Canada from England to care for their aging mother until her death, that she would agree to sell to him her expected one third interest in the family home, a home that had been built by their father some 60 years earlier.  The home having special meaning to Max, Max packed up his life and made the move, caring for their mother until her death three years later in 2010.

    Deception, Death & Disinheritance – a Recipe for an Estate Dispute

    Gloria held sway with their mother – so much so, that upon their mother’s death, Gloria revealed that their mother had transferred all of her assets to a trust of which Gloria was the only beneficiary.  Gloria’s actions resulted in the entire disinheritance of both brothers, betrayed by a sister who used her influence over their mother to exclude them from the estate. To make matters worse, Gloria then proceeded to refuse to sell to Max the interest in the family home, breaking the pledge she had made to him.

    Dismayed, Max sought to right the wrong that had been done and disputed the estate – suing not only for his fair share of the estate from the disinheritance but, also to hold his sister to the promise she had made to sell Max a one third of interest in the family home.

    Uncertain Certainties and the Law – Promises and Probabilities

    The disinheritance went to trial and the trial judge found Max’s sister had exerted undue influence over her mother in causing the mother to put all of her assets in her daughter’s name.  As a result, the judge ordered all of the assets back into the mother’s estate, and divided the estate equally into thirds.  Importantly, the trial judge also found that Max’s sister had to make good on her promise to sell her one-third interest to Max, because although the sister did not own the interest in the home when she made the promise, it was reasonable for Max to expect that Gloria would after their mother died. 

    In holding Max’s sister to her promise, the trial judge found the key components of “proprietary estoppel” were met:  there was a promise by the sister, that Max reasonably relied on, that was unfairly broken and caused Max detriment.  However, Max’s sister appealed to the BC Court of Appeal, and two of three judges found that Max’s sister could not be held to her promise because she didn’t own the one-third interest in the home at the time she made the promise, and it was not “certain” that she ever would.

    Is it reasonable to require certainty when making a promise about something that a person does not own at the time the promise is made (but is likely, but not certain, to own in the future)?  Are contingent promises valid – or are those who rely on them without recourse if the promise maker reneged?  These questions merited an appeal to the Supreme Court of Canada, which heard the case on May 26, 2017.  

    The Argument Before the Supreme Court of Canada

    League and Williams’, Darren Williams appeared before the 9 judges of the Supreme Court of Canada to argue the case on Max’s behalf.  Mr. Williams argued that the BC Court of Appeal was wrong in insisting there be absolute certainty in the sister’s ability to make good on the promise.  What followed was a lively debate with the 9 justices on the level of probability needed in order for a person to be held to the promise that was made.  Does the outcome of the promise have to be as certain as death or taxes?  Or is reasonable probability enough?  

    The decision of the Supreme Court of Canada is expected in the fall of 2017.  Those who are making contingent promises and those who are relying on those same promises should look forward to the clarity this case may bring to this area of law in Canada.  This blog will be updated once the decision is issued.   

    Have an estate dispute?  The lawyers at League and Williams are here to help and will fight for your fair share of an estate.  We serve clients across British Columbia, offer free consultations and do not get paid until you do.  We may be contacted at 250-888-0002 or via email at info@leaguelaw.com. If you have suffered an unfair disinheritance, do not delay, it could cost you your fair share of an estate. 

  • 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.