What Is Undue Influence in the Making or Changing of a Will?

Today, the Spraggs Law team discusses what British Columbians should know about undue influence in the making or changing of a will.

Please note, as of January

What is undue influence in the making or changing of a will in BC?

As part of our will-centric blog series, we’re diving into what this term means — and how it can impact one’s ability to contest a will.

What Is Undue Influence?

Undue influence, in the context of estate law, occurs when the free will of the testator (person making the will) has been intruded upon. In other words, does the will as it stands truly reflects the testator’s intentions regarding his or her final wishes?

How Is Undue Influence Established?

In an undue influence claim, there are two sides as follows.

The propounder: typically represented by the executor, regards the will as valid and wants to enforce it. 

The challenger: alleges there was undue influence in the making of the will and wants to invalidate it.

When a claim is made, the propounder has the initial burden of proving that the will is valid because the testator had knowledge and approval (understands and approves the contents of the will) and testamentary capacity (is cognizant of his or her assets and the state of affairs and understands the consequences of making a will). The burden then shifts to the challenger to prove undue influence.

What Constitutes Undue Influence?

The court has provided some guiding principles on what constitutes undue influence. Generally speaking, outright coercion, threats, manipulation or fraud would constitute undue influence.  Conversely, mere suggestion or persuasion would unlikely constitute undue influence. Fundamentally, it is about the violation of the testator’s free will. However, the analysis is far more nuanced and the court will consider multiple factors that are beyond the scope of this article.

It is also important to note that whether there is undue influence depends heavily on specific facts of the case. 

For example, there is a court decision where the judge found the testator to be particularly “strong-willed” and “domineering”, i.e. she is harder than the typical person to be influenced, and undue influence was not established.

What’s the Effect of a Finding of Undue Influence?

A finding of undue influence would render the will invalid or not enforceable.

Tread carefully…

Mere suspicion of undue influence is not enough. There must be some actual evidence of undue influence. Sometimes, no direct evidence is available but the court may be able to make inferences from indirect evidence.

An undue influence claim should not be made lightly as doing so may delay the administration of the estate and waste estate assets. A failed claim will have direct financial consequences for the challenger in form of court costs, which could reach six figures if the dispute leads to a full trial.

What Can I Do to Avoid Disputes About Undue Influence?

If you are making a will, there is no sure-fire way of preventing undue influence claims from arising; however, there are some good practices to consider:

• Make a will while you are relatively young and healthy to avoid suspicion that you lack mental capacity;
• Have contemporaneous documentation such as letters and memorandums explaining your intentions and the circumstances under which you are making the will; and
• Hire a lawyer or notary to draft the will, as these legal professionals should keep detailed file notes and they also have an obligation to do a preliminary assessment of a client’s mental capacity.

There are some other important details to consider:

• While undue influence claims are mostly governed by the common law, legal principles developed by judges over time, there may be  statutory laws passed by the legislature that modifies the common law principles;
• Some specials rules and laws may apply to first nations; 
• The paper is focused on assets that are transferred after a person dies;
• Different legal principles may apply when assets are transferred during a person’s lifetime, or inter vivos gifts. 

Contesting a Will Because of Undue Influence? Spraggs Law Can Help

Spraggs Law offers legal help to those living in BC regarding navigating estate law, as well as offering representation should the need arise.

Give us a call at 604-359-1627 or contact us online to discuss how we can offer personalized assistance regarding contesting a will in BC because of undue influence based on your unique needs.

Please note: This article does not contain legal advice. If you would like advice on your specific situation, please contact Spraggs Law.