Estate Litigation – Undoing “Undue Influence”
Critical Changes to Claiming “Undue Influence” in BC Estate Litigation
The Wills, Estates and Succession Act (“WESA”) came into force on March 31, 2014 and with it came substantial changes in respect of many aspects of estate litigation. One of the critical changes introduced by WESA involves allegations of “undue influence”. S. 52 of WESA states:
Undue Influence on Will-Maker
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.
Burden of Proof Moved to the Accused
This is a substantial change from the previous law in British Columbia because this section shifts the burden to the person being accused of the undue influence to prove to the Court that they did not compel the will-maker (through domination or the dependence of the testator) to make the gift.
The allegation of undue influence is significant however, this provision of WESA is designed to protect both the true wishes of the deceased and the legitimate claims of other beneficiaries who may not have been able to curtail or stop the undue influence from occurring.
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When to Contact Estate Litigation & Wills Variation Law Lawyer
If you are a spouse or an adult child of a recently deceased person and believe that their will may have been changed by undue influence, contact the Kushner Law Group at 604-629-0432 or contact us online to schedule a free consultation.