How Do I Contest A BC Will Undue Influence cases are difficult because much of the improper influence by a family member or third party happens in secret. Vancouver BC Undue influence over an elderly and infirm loved one means:
- inappropriately using a position of trust or power to pressure or persuade a person to do something that is not in their best interests,
- the result of this BC undue influence benefits the influencer,
- this result at the same time creates some kind of harm or loss to the senior involved.
- Money, investments and real and personal property are usually at stake.
Top 3 Warning Signs
Our top rated* How Do I Contest A BC Will Undue Influence Lawyers who have 5 offices across BC in Vancouver Surrey, Kelowna, Fort St John and Richmond as well as Calgary warn of 3 red flags to look for:
- Isolation of a loved one is a common tactic of influencers to isolate the testator from friends and family. This makes it easier to persuade the vulnerable testator behind closed doors.
- Increased Control over elderly testator. The influencer may insist on being present at any meetings, bank meetings, medical visits, business meetings and the like or even prohibit visits to your loved one.
- Changes to insurance forms, joint accounts, powers of attorney being created, meetings being booked to change a Will, RED FLAG warning signs of undue influence occur when a specific beneficiary is heavily favored with assets. If the elderly person support person suddenly benefits the most from any changes, call a lawyer immediately.
Our Wills Estates and Succession Act “WESA” contains a powerful new section that places the onus on the person who benefitted from a Will or gift in it to prove there was no undue influence. For more free information on this topic check out our page.
If you want to know what a BC Will lawyer should do to make sure no undue influence exists before preparation of BC power of attorney and a new BC Will check out the BCLI summary here.
How Do I Contest A BC Will Undue Influence Lawyers 1-877-602-9900
In a proceeding, if a person claims that a BC Will or any provision of it resulted from another person:
- being in a position where the potential for dependence or domination of the will-maker was present, and
- 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 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.
New BC APPEAL COURT DECISION-How Do I Contest A BC Will Undue Influence?
In a case that converted a petition to an action so the issue of undue influence could be decided with witnesses at a full trial The BC Court of Appeal in Kerfoot v. Richter 2018 BCCA 238 pointed out how BC undue influnce often happens behind closed doors and what the test is to have undue influence claims heard fully at trial.
The daughter contended that the deceased lacked testamentary capacity and the Will was procured as a result of undue influence by her two siblings, the respondents when a new will changed a 3 way equal division to roughly 45% 45% with only 10% to her. The Court of Appeal confirmed the test to be applied on an application to convert a proceeding brought by petition to an action is whether, on the relevant facts and applicable law, there is a bona fide triable issue.
 In determining whether the petition should be converted to an action, the test put before the chambers judge was that set out in British Columbia (Milk Marketing Board) v. Saputo Products Canada G.P. / Saputo Produits Laitiers Canada S.E.N.C., 2017 BCCA 247: proceedings brought by petition should be referred to the trial list when there are disputes of fact or law, unless the party requesting the trial is bound to lose (at para. 43).
I appreciate the chambers judge’s concerns about the weakness of Mary’s evidence, as some of it went no further than mere allegations. However, the fact that Mary had no first-hand knowledge of the events leading up to the making of the impugned will is hardly surprising given the nature of the issues. Proving undue influence is not easy. Section 52 of WESA has shifted the onus of proof to the defender of a will once the person challenging it has shown that the testatrix was in a relationship of dependency with the person alleged to have exerted undue influence, or one in which the potential for domination existed.
Undue influence may be established through circumstantial evidence. Mary’s pleadings and evidence contain conclusory statements about many of the events leading up to the execution of the impugned will, but they also raise factual issues from which inferences of undue influence could be drawn. These issues relate to Bernice’s advanced age and declining health, her dependence on John and Janet at the relevant times, John and Janet’s advance knowledge of the impugned will, and the marked difference between the impugned will and the prior wills. Mary also provided direct evidence contradicting most of the reasons expressed in the impugned will for disinheriting her.
In my view, the materials before the chambers judge were sufficient to establish a triable issue.
Call Our How Do I Contest A BC Will Undue Influence Lawyers Now 604-602-9000
Our top rated* Vancouver BC Undue influence lawyers can assist you in protecting loved one BEFORE undue influence becomes a problem. But if you suspect impropriety with a Will has occurred and have a How Do I Contest A BC Will Undue Influence problem call us right Away. Lorne N MacLean, QC is pleased to assist you.
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