How do you prove undue influence over a will in British Columbia?
This answer covers the law of British Columbia.
To prove undue influence over a will in British Columbia, you generally have to prove it yourself, unless section 52 of the Wills, Estates and Succession Act (WESA) shifts the onus. Without a showing of a position of potential dependence or domination, the person alleging undue influence or fraud bears the burden of proving it.
Under section 52, you go first. You must show that the other person was in a position of potential dependence or domination over the will-maker and that this position was used to influence the will. Only then does the onus move to the person defending the will, who must prove that no undue influence was exercised. This aligns undue influence in wills with undue influence in gifts made during life.
Suspicious circumstances alone do no more than rebut the presumption of capacity and of knowledge and approval, even if they raise a suspicion of fraud or undue influence. The standard stays the balance of probabilities, with evidence scrutinized according to the gravity of the suspicion. What evidence a court will accept depends on the facts, so a lawyer can help you assess what you have.
Key takeaways
- A person alleging undue influence or fraud generally has to prove it.
- Under WESA s. 52 the onus shifts only after the challenger shows the other person was in a position of potential dependence or domination.
- Once that is shown, the person defending the will must prove that no undue influence was exercised.
- Suspicious circumstances do not raise the standard of proof, which stays the balance of probabilities.