Signs of Undue Influence on an Elderly Parent's Will in BC

You may have noticed a caregiver, a sibling or another relative controlling who sees your parent, handling their money or speaking for them. When a will then changes, it is natural to worry that your parent did not make that decision freely.

This article explains how British Columbia law frames undue influence, which situations the law pays attention to, and what you can sensibly note and do. It describes the general approach and is not a checklist that proves a case.

This article covers the law of British Columbia.

What undue influence means in plain words

Undue influence means a will reflects someone else's pressure rather than the will-maker's own free choice. It is different from lack of mental capacity, which asks whether the will-maker was mentally capable. A parent can be capable and still be pressured, and a parent can lack capacity without anyone pressuring them.

Careful or persuasive family conversations are not automatically a problem. The legal question is whether a person in a position to dominate used that position to influence the will.

How the law uses dependence and domination

WESA s. 52 says that if a person claims a will resulted from undue influence and shows the other person was in a position of potential dependence or domination, the party defending the will has the onus of proving that no undue influence was exercised. The challenger carries the first step: showing that the other person was in that position over the will-maker and that the position was used to influence the will.

This lines up undue influence in wills with undue influence in gifts made during life. If the challenger cannot make that first showing, the ordinary rule applies and the person alleging undue influence or fraud bears the burden of proving it. That is why the facts about the relationship matter so much.

Warning signs adult children often notice

The following are common concerns families raise. They are observations to record, not legal tests, and none of them proves undue influence by itself. How much weight a court gives any of them depends on the evidence as a whole.

• A caregiver or relative limiting visits, calls or contact with other family or friends.
• One person controlling bank accounts, mail, medication or appointments.
• A sudden change to a long-standing plan, especially one that favours the person with day-to-day control.
• The favoured person being present when instructions were given or the will was signed.
• A parent who seems fearful, confused or unusually dependent on one person.
• Secrecy about the new will, or resistance to letting others speak with your parent alone.

Suspicious circumstances and capacity

In Vout v. Hay, the Supreme Court of Canada addressed suspicious circumstances in will disputes. Where suspicious circumstances relate to mental capacity, the person propounding the will reassumes the legal burden of establishing testamentary capacity. 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.

Suspicious circumstances, even if they 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. Because those points should be checked against the judgment itself, ask a lawyer how they apply to your facts.

What to do next

• Write down dates, names and what you saw or heard, while memories are fresh.
• Keep records of messages, emails and any changes to accounts or property.
• Do not confront your parent in a way that adds stress or could prompt further changes.
• If you may need the original will or related documents, the court can order a person who has them to produce them.
• If the person you are worried about is the named executor, an interested person can apply to remove or pass over a personal representative.
• Speak with a lawyer early, because timing rules apply once a grant is sought, including filing a notice of dispute under Rule 25-10.

If you are a spouse or child and cannot prove incapacity or undue influence, WESA s. 60 offers a different route: the court may order provision out of the estate if the will does not make adequate provision for proper maintenance and support. That claim has its own 180-day deadline from the grant.

Frequently asked questions