Our Vancouver estate litigation and Wills dispute lawyers advise that Section 52 of The Wills, Estates and Succession Act (“WESA”) creates a NEW presumption of undue influence in relation to disputed wills where certain types of relationships exist. This new section reverses the onus that exists in BC effective March of 2014 when WESA will be in force.
Our Vancouver Undue Influence WESA Lawyers expect that this new reversal of onus for upholding a will in undue influence cases may lead to a surge in claims by potential beneficiaries who have suffered a reduced inheritance or worse yet who receive nothing on death of a relative because of someone’s inappropriate influence. The Wills, Estates and Succession Act, section 52 reads:
- 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
- [THEN] (b) 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.
- Under this new provision, unlike the present law, the complaining party who alleges improper influence relating to the disputed Will need only show that the will-maker was in a position of dependence or submission to another person. Once that relationship has been established, the party defending the will’s validity has the burden to prove that he or she exercised no undue influence over the will-maker.
Warning signs for potential undue influence might include:
- atypical will instructions given the family situation,
- mental infirmity or confusion at or around the time of will preparation,
- an inordinate dependence by the will maker upon someone who ends up being a beneficiary,
- a beneficiary that was kept secret from other family members or secret and rushed attendences upon a lawyer while accompanied by this person upon whom the will maker has an unhealthy dependence on
- Significant and poorly explained changes in addition or removal of beneficiaries from a prior will.
If you have concerns that someone you care about is in an unhealthy situation of dependence contact us now, our Vancouver Undue Influence WESA Lawyers can help. Call us today at 604-602-9000.
