Presumption of Undue Influence in BC Wills: When Courts Presume It

You may suspect that someone close to a deceased person, such as a caregiver, a relative or a friend, pushed them into leaving their estate a certain way. Often the question is whether the person who benefited was simply involved in the will-maker's life or was actually in control of it.

In British Columbia, this is mainly a question under the Wills, Estates and Succession Act (WESA). This article explains how the presumption of undue influence works, how it differs from ordinary persuasion, and what timing points to watch.

This article covers the law of British Columbia.

What undue influence means in plain words

Undue influence is pressure that overpowers a will-maker's free choice, so the will reflects someone else's wishes instead of their own. It is different from ordinary persuasion. Family members and friends often give opinions, make requests or argue for what they think is fair, and a will-maker can still make their own decision.

The line between persuasion and coercion depends on the facts: the relationship, the will-maker's health and independence, and how the will came about. A court looks at the whole picture, and a lawyer can help you judge how your facts might be viewed.

WESA s. 52 deals with undue influence in wills and contains the rule on who must prove what.

When the onus shifts to the person defending the will

The presumption does not arise automatically just because someone benefited. The challenger carries the first step: they 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. The party seeking to defend the will must prove that no undue influence was exercised. The government explanation says this aligns undue influence in wills with undue influence in gifts made during a person's life.

Suspicious circumstances are not the same thing

Courts also talk about suspicious circumstances. In Vout v. Hay, the Supreme Court of Canada held that suspicious circumstances, even ones that raise a suspicion of fraud or undue influence, do no more than rebut the presumption of capacity and of knowledge and approval. A person alleging undue influence or fraud generally still has to prove it, except where WESA s. 52 shifts the onus.

The same decision says suspicious circumstances do not raise the standard of proof. The evidence is scrutinized in accordance with the gravity of the suspicion, and the standard remains the balance of probabilities.

Evidence that tends to matter

Because the first step falls on the challenger, evidence of the relationship is central. These are the kinds of things people usually try to document:

• How dependent the will-maker was on the person who benefited, for care, transport, money or communication.
• Whether that person was involved in arranging the will, meeting the drafter or being present when it was signed.
• Changes from earlier wills and whether the change was explained.
• Whether the will-maker was isolated from other family or friends.
• Statements the will-maker made to others about their wishes.

Whether any of this is admissible or persuasive depends on the case, so keep what you have and let a lawyer assess it.

What to do next

Timing matters. A person who receives notice of a probate application may oppose the grant by filing a notice of dispute (Form P29) under Rule 25-10. Filing one prevents a grant from being issued before the person can apply for an order requiring security.

The formal challenge to validity is made by applying to the Supreme Court for an order proving the will in solemn form under Rule 25-15, and that is where undue influence questions are decided. A personal representative must not distribute the estate within the 210 days following the grant, except by court order.

The Limitation Act sets a basic limitation period of 2 years from discovery of a claim. Whether and how it applies to a challenge to a will's validity can be unclear, so get advice early instead of relying on a date. A separate claim by a spouse or child for adequate maintenance has its own 180-day deadline from the date the representation grant is issued.

• Collect the will, earlier wills and any notes about when and how it was made.
• Write down dates and who was involved while memories are fresh.
• Check whether a probate application has been filed or notice received.
• Speak with a lawyer about a notice of dispute and your deadlines.

Frequently asked questions