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Vancouver Unequal Division Of Excluded Property

Vancouver Estate Litigation Lawyers handle cases involving unfair wills, undue influence claims and elder abuse prevention and protection cases. The Vancouver Estate Litigation Lawyers are led by senior family law and estate litigator, Lorne N. MacLean, QC.

Vancouver Estate Litigation Lawyers Call 1 877 602 9900

In today’s blog, Lorne N MacLean, QC explains how spouses and relatives who:

  • were unfairly treated in a Will,
  • or who are concerned assets of an elderly and infirm person are being disposed of,
  • can protect a loved one or recover their fair share of a loved one’s estate.

How can you protect a loved one from being taken advantage of or having their property and income improperly diverted from them? What happens when a predator overwhelms the elderly person and causes them to transfer valuable income and assets to this scoundrel? Here are key points to be aware of paraphrased from the recent judgment of Findlater v. Naziel:

  • Undue influence is an improper influence which overbears the will of the person influenced so that what he or she does is not his or her own act: 
  • Undue influence can arise where the relations between the donor and donee at the time of or shortly before the execution of a will have been such as to raise a presumption that the donee had influence over the donor: 
  • A gratuitous transfer from a parent to an adult child creates the presumption of undue influence by the adult child
  • Finally, undue influence does not depend on proof of reprehensible conduct—indeed, the donee may have acted sincerely and honestly. 

Vancouver Estate Litigation Lawyers Call 1 877 602 9900

Our top-rated Vancouver estate litigation lawyers explain not all transfers to a relative or person in a position to exert undue influence will be reversed or set aside.

To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own “full, free and informed thought”. A defendant could establish this by showing:

a.         no actual influence was used in the particular transaction or the lack of opportunity to influence the donor;

b.         the donor had independent advice or the opportunity to obtain independent advice;

c.          the donor had the ability to resist any such influence;

d.         the donor knew and appreciated what she was doing; or

e.     there is undue delay in prosecuting the claim, acquiescence or confirmation by the deceased.

Finally, Another relevant factor may be the magnitude of the benefit or disadvantage.

If you have a question about an unfair will or undue influence meet with our Vancouver Estate Litigation Lawyers Call 1 877 602 9900