As the Vancouver population ages, predatory marriages and abusive caregiver relationships are sadly becoming more routine in Vancouver and across BC. This despicable behaviour can lead to the loss of monies and assets and the creation of unfair Wills that are made by a Will maker who is coerced, scammed or confused.
One of the grounds for challenging a Vancouver Will is undue influence. In this post we address what undue influence is and provide you with a handful of examples where the courts have varied a disputed Vancouver Will on the basis of undue influence. Keep in mind that proving undue influence in estate litigation often requires lots of evidence and it is recommended that you consult a skilled and experienced Vancouver Wills Undue Influence Lawyers and seek legal advice as soon as possible.
The new Wills, Estates and Succession Act (WESA) has shifted the burden of proof in relation to undue influence cases in certain circumstances. To read more about undue influence under WESA see our earlier blog postings as well as our future blogs on what is an expanding area of disputed and contested wills litigation law.
Don’t Stand Idly By If A Loved One Is Being Taken Advantage Of
There is a significant evidentiary burden in cases of undue influence and you may want to consult a lawyer as soon as possible, in order to preserve evidence. You may also consider consulting a lawyer before your loved one has passed away. For instance, you may consider applying for committeeship or power of attorney in order to preserve assets and ensure that your loved one is properly being looked after, at least financially. To protect your rights and interest, seek legal advice as soon as possible. If you feel a loved one is being taken advantage of contact us immediately.
What is undue influence?
Undue influence is a legal concept that arises in many situations. However, in estate litigation is usually applies to cases where:
- the a person makes a will that does not reflect the true intention of the will maker and the will is often made as a result of a pressure from a third party; or
- a person as a result of pressure from another person, transfers property to a third party during his or her lifetime.
Undue influence goes beyond mere persuasion to make a will or other transfer of property.
In Ravnyshyn v. Drys (appeal dismissed) at para 104 the honourable Mr. Justice Warren stated:
“There is nothing improper in equity for one to attempt to solicit a will in his or her favour and to use all lawful means toward effecting that end. Indeed some amount of persuasion and mere influence is permissible so long as it does not amount to undue influence”
In Hall v. Hall (1868), L.R. 1 P. & D. 481 at 481-482 (as cited in Oosterhoff, Oosterhoff on Wills and Succession), the court stated that: “To make a will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like – these are all legitimate, and may be fairly pressed on a testator.”
Pursuant to Wingrove v. Wingrove (1885), 11 P.D. 81 at 82-83:
“To be undue influence in the eye of the law there must be – to sum it up in a word – coercion…. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence…. [Mere influence does] not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, “this is not my wish, but I must do it.”
In Re Marsh Estate, (1991) 99 N.S.R. (2d) 221 (appeal dismissed), Bateman J.C.C. stated at para. 46:
“It is not improper for a potential beneficiary to express her wish to benefit and, indeed, to plead her case as to why she should benefit. In other words, it is not improper for a potential beneficiary to attempt to influence the ultimate decision of the testator. The problem arises when that influence becomes coercive, in effect, when the beneficiary dominates the decision of the testator.”
Therefore, undue influence is the imposition of the influencer’s wishes on another person, such that the other person is not acting freely in performing the act that the influencer desires (See Recommended Practices for Will Practitioners Relation to Potential Undue Influence: A Guide).
To prove undue influence, it is not necessary to show that there is direct or immediate benefit to the influencer. It is sufficient to show that the pressure imposed results in the act desired by the influencer. In Re Marsh Estate, (1991) 99 N.S.R. (2d) 221 (appeal dismissed), the court stated that:
“It is not material to the issue here that the person allegedly exercising the undue influence, in this case Mr. Fryer, is not in fact the beneficiary directly but rather the beneficiary only in the event of the death of his wife. In my view the undue influence, if it exists, is fatal and need not have been exercised to directly and immediately benefit the person exerting the influence.”
Sample Cases where undue influence was established
It the case of In Ravnyshyn v. Drys (appeal dismissed) the honourable Mr. Justice Warren, reviewing the case law stated:
“[107] There are a myriad of cases where the court has found undue influence involving bequests to a stranger, including Philp v. Williamson, [1980] B.C.J. No. 17 (C.A.), where the testator left a life interest to her some time partner with the residue to his son, but leaving nothing to her two daughters or four grandchildren, to whom she had always been generous and had a good relationship. The court found that her partner’s son was a comparative stranger, that she owed him nothing, and that she was not particularly fond of him. Her main intention was to avoid double succession duties.
[108] In Peters Estate v. Ewert, 2002 BCSC 1540 (CanLII), 2002 BCSC 1540, 48 E.T.R. (2d) 91, the testator was an elderly woman with no children who left the bulk of her estate to her church with some bequests to a large number of nieces and nephews who lived in various parts of the world. In finding undue influence, the court considered that the drafting solicitor had little recollection of the circumstances surrounding the preparation of the will or its execution, that the testator had made no provision for an impoverished sister with whom she had had a close relationship, and that the testator had been suffering from delusions.
[109] In Spence v. Price, [1945] O.J. No. 343 (C.A.), the testator, who was unmarried and had no children, left her entire estate to her “dear friend”, disinheriting her sister. The court found that had she been of sound and disposing mind, memory and understanding, she would not have done so. The court found on the medical evidence that there was a lack of soundness of mind, memory and understanding.”
Keep in mind that there are also other cases where undue influence has been established. For instance, undue influence may occur in cases of predatory marriages (i.e. a young caregiver who marries a rich old partner). It may be good news for some people knowing that as of March 31, 2014, marriage no longer revokes wills (See our blog post on remarriage and WESA). You may also find our blog post on changes in burden of proof in undue influence cases under WESA useful.
Our Vancouver Wills Undue Influence lawyers will assist you in proving your case of undue influence but time limits apply and it’s critical we start early in the process to ensure your claim is not jeopardized or monies dissapated. call us now toll free across Bc at 1-877-602-9900.
