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Vancouver Unequal Division Of Excluded Property

Our Vancouver Undue Influence Disinheritance Lawyers know undue influence is on the rise across the World and BC is no exception. Our Vancouver Undue Influence Disinheritance Lawyers help protect vulnerable individuals and their family members from financial predators.

In today’s, blog Fraser MacLean of our Vancouver Undue Influence Disinheritance Lawyers explains that Undue influence is an equitable doctrine. Vancouver Undue Influence can occur in a Will when the testator has been overborne by another person to the extent that the decision in question was not, truly and freely, their own. Advice and persuasion do not equate to undue influence as long as the testator’s free discretion to accept or reject these are not breached.

In a Vancouver Estate Litigation claim, it is important to understand the impact of the BC Wills, Estates and Succession Act. One of the crucial changes under the new Wills Estates and Succession Act (WESA) involves how allegations of undue influence are treated by the BC Courts. Under the new WESA legislation, once there is a claim of undue influence, the burden of proof is on the party who received a benefit under the Will or who seeks to defend the Will to show no undue influence took place.

Vancouver Undue Influence Disinheritance Lawyers 1-877-602-9900

If you suspect you have been unfairly left out of a will due to undue influence call one of our Vancouver Undue Influence Disinheritance Lawyers and Estate Litigation attorneys today toll-free across BC.

MacLean Law’s Vancouver Undue Influence Disinheritance Lawyers operate out of 5 offices across BC as well as in Calgary Alberta.

Vancouver Undue Influence Disinheritance Lawyers Explain WESA Undue Influence Rules

Under WESA the provision for Undue Influence is found at s. 52 which states:

Undue influence

52  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, 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.

Vancouver Undue Influence Disinheritance Lawyers

In the case Brydon v. Malamas, the testator named, Stella died in 2004. The testator happened to be a functioning schizophrenic. The plaintiff was the testator’s grandniece and goddaughter and the defendants were a 76 year old sister of the testator and her son. There were wills made by the testator in 1983 and 1985 in which the Plaintiff was the main beneficiary. The plaintiff was gifted a house in 1995 by the testator and her other sister Margaret. In September 2004, one of the defendant’s (Mary) moved in with the testator. Shortly after on October 12, 2004, the testator transferred 3 of 4 accounts and an RRSP to joint accounts to the defendant and her son. On October 13 a notary (arranged by the defendant) visited the testator in the hospital for a land transfer to joint interest in the testator’s home on West 8th. The notary was under the impression that the testator was of capacity. The testator eventually signed a will in the hospital on October 19, 2004, which made the defendant (Mary) the main beneficiary, excluding the plaintiff and made Mary and her two sons executors. The plaintiff brought forward claims challenging the validity of the new will and inter vivos transactions on the ground that the testator lacked mental capacity, and that the defendant exerted undue influence on her.

The Court found that the testator had changed her will based on the erroneous belief regarding the plaintiff selling a house in which the plaintiff had promised not to do. This was a delusion the testator was suffering from and the delusion influenced the testator’s mental process and poisoned her affections against the plaintiff.

Regarding the allegation of undue influence, the Court found that the plaintiff failed to prove that the defendant had exerted actual undue influence on the testator, and provided the following:

[241]      Undue influence is immoral conduct which is closely related to fraud.  The law therefore requires that undue influence be proved to a higher degree of probability than a mere 51%.  It will be apparent from my earlier finding that, in my opinion, the plaintiff has failed to independently prove the allegation that Mary exerted actual undue influence on Stella.

The Court found that the bank transactions of October 12, the land transfer on October 13, and the will made on October 19, 2004 were set aside as being invalid and of no force and effect. The testator’s will made in July, 1995, was declared valid and admitted to probate.

Fraser MacLean points out that in the past undue influence claims were risky and costs could be awarded against the unsuccessful Claimant. Fortunately,  it is important for British Columbian’s to note that since WESA came into force in 2014, the burden of proof for undue influence has been moved to the party seeking to defend the will to prove that undue influence has not taken place. This change is welcomed by our senior Vancouver Undue Influence Disinheritance Lawyers as undue influence often occurs in secret behind closed doors.

If you have an Estate Litigation claim call one of our highly experienced Estate Litigation and Vancouver Undue Influence Disinheritance Lawyers Lawyers today 1-877-602-9900.