How to Prove Undue Influence on a Will in British Columbia

You may have a sense that someone close to the deceased pressured them into changing a will, perhaps by isolating them, controlling their care, or steering their decisions. That feeling is common in estate disputes, but a court needs more than a feeling. It needs evidence, and the law sets out who must produce it.

This article explains how undue influence works in a British Columbia will challenge, what the challenger must show first, when the burden moves to the person defending the will, and which timing points to look at early. It is general information, not advice on your situation.

This article covers the law of British Columbia.

What undue influence means and where the rule comes from

In plain words, undue influence means the will reflects someone else's pressure rather than the will-maker's own free choice. In British Columbia, the Wills, Estates and Succession Act (WESA) deals with it in section 52. The provincial government explains that this approach lines up undue influence in wills with undue influence in gifts made during a person's lifetime.

Probate is the court process that confirms a will. It checks that the will was made without fraud or undue influence, and a will that passes those checks is described as valid. Probate checks are not the same as a full contest, which is why a family member with real concerns may need to take active steps.

Who has to prove what

The starting point is that a person who alleges undue influence or fraud bears the burden of proving it. Section 52 changes that in one situation. If you claim a will resulted from undue influence and show that the other person was in a position of potential dependence or domination, the party defending the will must prove that no undue influence was exercised.

The challenger carries the first step. 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 defender. Without that showing, the ordinary rule applies and you carry the burden.

Building the evidence

The law does not hand you a checklist of exact evidence, so the practical task is to gather material that speaks to the two questions above: the relationship between the two people, and how that relationship affected the will. Witnesses to the signing can be key evidence in disputes about how a will was signed, and signing witnesses must be 19 or older.

If you do not have the documents, the court can order a person who controls or possesses certain documents or property to produce and bring them to court, which a challenger can use to obtain original wills and related papers.

• Any earlier wills and the current will, in original form where possible.
• Notes, emails or messages that show who was involved in arranging the will.
• Names of people who saw the will-maker's circumstances in the period around signing.
• Information about who signed as witnesses and in what setting.

Other routes and timing points

If you are a spouse or child who was left out, undue influence is not your only option. Under WESA s. 60, if a will does not make adequate provision for the proper maintenance and support of a spouse or child, the court may order provision out of the estate that it thinks adequate, just and equitable. A wills variation proceeding must be commenced within 180 days from the date the representation grant is issued in British Columbia. A copy of the initiating pleading must be served on the executor no later than 30 days after that 180-day period, with provision for extensions.

A person who receives notice of a probate application may oppose a 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 personal representative must also not distribute the estate within 210 days after the grant, except by court order, which gives a window to act.

The general limitation period is 2 years from the day the claim is discovered. Whether it governs a validity challenge depends on the type of proceeding, so treat the deadline cautiously and confirm it with a lawyer. A limitation period set under another enactment can also displace the general one.

What to do next

• Find out whether a probate application has been made and whether a grant has issued.
• Note the dates of any notice you received and any grant.
• Collect the documents and names of people who can speak to the relationship.
• Ask a lawyer whether to file a notice of dispute and which deadlines apply to you.

Because the first-step showing under section 52 decides who carries the burden, it is worth talking to a lawyer before deciding how to proceed.

Frequently asked questions