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Our Vancouver undue influence Will dispute lawyers welcome the new changes to undue influence disputes related to elderly and infirm testators. Formerly, when a deceased gave a bequest to a close family member or third party where suspicious circumstances on the bequest existed, the person raising the issue of undue or improper influence existed faced the difficult burden of proving these circumstances. As undue influence often occurs behind closed doors the burden was very hard if not impossible to meet.

Thankfully, now the onus of proof has been reversed!

MacLean Law is the multiple winner of Vancouver’s best family law firm having won this prestigious award for 3 out of the last 4 years. Our senior team of top rated* Vancouver Undue Influence Will Dispute lawyers handle difficult and high net worth estate disputes. When you suspect undue influence is happening and need top Vancouver Undue Influence Will Dispute lawyers call us toll free in BC or Calgary at 1-877-602-9900. Meet with us in Vancouver, Surrey, Kelowna, Fort St John, Richmond or Calgary.

Vancouver Undue Influence Will Dispute 604-602-9000

The new Section 52 of WESA creates a presumption of undue influence where certain types of relationships exist. Section 52 states that a party challenging a will based on undue influence now need to only show that the will-maker was in a position of dependence or submission to another person. Once this type of relationship is proven, 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 undue influence can include diminished mental or physical capacity, unusual dependence on  a close family member or health care provider, secrecy on Will changes, sudden changes in property ownership to a new third party person or family member and rush changes to a will without basis.

Family members are encouraged to take action when a loved one is alive if they suspect predatory relationships!

What Is The Test In A Vancouver Undue Influence Will Dispute?

In Bunn v Bunn . Estate a recent BC Supreme Court case the court discussed the tricky issue of undue influence:

In Geffen, Madam Justice Wilson discussed the presumption of undue influence and rebutting the presumption at pages 377-379, as follows:

What then is the nature of the relationship that must exist in order to give rise to a presumption of undue influence? Bearing in mind the decision in Morgan, its critics and the divergence in the jurisprudence which it spawned, it is my opinion that concepts such as “confidence” and “reliance” do not adequately capture the essence of relationships which may give rise to the presumption. I would respectfully agree with Lord Scarman that there are many confidential relationships that do not give rise to the presumption just as there are many non-confidential relationships that do. It seems to me rather that when one speaks of “influence” one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. I disagree with the Court of Appeal’s decision in Goldsworthy v. Brickell, supra, that it runs contrary to human experience to characterize relationships of trust or confidence as relationships of dominance. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well. The point is that there is nothing per se reprehensible about persons in a relationship of trust or confidence exerting influence, even undue influence, over their beneficiaries. It depends on their motivation and the objective they seek to achieve thereby.

Vancouver Undue Influence Will Dispute Section 52

Section 52 of WESA creates a presumption of undue influence where certain types of relationships exist. Under this provision, a party challenging a will based on undue influence 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.

Section 52 of WESA creates a presumption of undue influence where certain types of relationships exist. Under this provision, a party challenging a will based on undue influence 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.

What Must Plaintiff Prove In A Vancouver Undue Influence Will Dispute?

What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.

By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.

Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

Supreme Court of Canada Vancouver Undue Influence Will Dispute Law

[61]Mr. Justice La Forest discussed the application of the presumption of undue influence at pages 392 and 394, as follows:

As my colleague has noted, the first issue to be considered is whether the circumstances in this case are such as to give rise to a presumption of undue influence. Wilson J. concludes that such a presumption will arise only when the parties are in a relationship of “influence”, where one person is in a position to dominate the will of another. I agree with this.

Vancouver Undue Influence Will Dispute Adult Children

[199]     As set out on page 378 of Geffen, the relationship between parent and child has been recognized as giving rise to the presumption of undue influence. However, the presumption does not automatically arise when a claim is made that an adult child unduly influenced an elderly parent.

[200]     The presumption was found not to have arisen on the facts in the following cases, which all involved allegations that an adult child had exerted undue influence over a parent: Stone v. Campbell, 2008 BCSC 1518; Stewart v. McLean, 2010 BCSC 64; Lorintt v. Boda, 2014 BCCA 453; and Porter Estate v. Porter, 2015 BCSC 2354.

[201]     As stated by Mr. Justice Meiklem in Elder Estate v. Bradshaw, 2015 BCSC 1266 at para. 108, “[t]he nature of the specific relationship must be examined in each case to determine if the potential for domination is inherent in the relationship” and, accordingly, whether the presumption arises on the facts of the case.

Call our experienced and savvy Vancouver Undue Influence Will Dispute lawyers immediately if you suspect a relative is being taken advantage of. Call us now 1-877-602-9900.

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