Undue Influence by a Caregiver or Adult Child on a BC Will

It is common for one child or a paid caregiver to be closest to an older parent. If the will then favours that person, siblings and other relatives may suspect the parent was pressured or took advice from someone they depended on.

Closeness alone is not wrongdoing. This article explains how BC law structures an undue influence claim, who has to prove what, and what other options exist. A lawyer can tell you how it applies to your facts.

This article covers the law of British Columbia.

What undue influence means

In plain terms, undue influence means a will reflects someone else's pressure or domination rather than the will-maker's own free decision. Probate checks that a will was made without fraud or undue influence, and a will that passes these checks is described as valid. The government guide notes that this does not replace the advice of a lawyer.

Questions of undue influence are decided by the Supreme Court in a proceeding to prove the will in solemn form.

How section 52 shifts the burden

WESA section 52 deals with undue influence. 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 goes first. They must show 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.

Caregivers and adult children

A caregiver or an adult child who handled a parent's daily life may or may not be in a position of potential dependence or domination, and that depends on the facts.

Under section 52 of the Wills, Estates and Succession Act, the onus of proving undue influence shifts only once the challenger has shown a position of potential dependence or domination. Without that showing, the person alleging undue influence or fraud bears the burden of proving it.

Where suspicious circumstances relate to mental capacity, the person propounding the will reassumes the burden of establishing capacity. Suspicious circumstances do no more than rebut the presumption of capacity and of knowledge and approval, and a person alleging undue influence or fraud generally still has to prove it, except where section 52 shifts the onus.

How this applies to a particular caregiver or adult child depends on your situation, so it is worth confirming with a lawyer.

Other routes and timing

• If a will does not make adequate provision for the proper maintenance and support of a spouse or children, 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 person interested in an estate may apply to the court to remove or pass over a personal representative.
• A person receiving notice of a probate application may file a notice of dispute (Form P29).
• The personal representative must not distribute the estate within the 210 days following the grant, except by court order.

The deadline for a validity challenge itself is a point to confirm with a lawyer promptly. The 180-day period applies to wills variation claims, which are different from validity challenges.

What to do next

• Write down who cared for your parent, when, and what they handled.
• Collect dates for any will changes, and note who attended those meetings.
• Keep emails, messages and financial records that show how the parent's circumstances changed.
• Check whether a probate notice has arrived and whether a grant has issued.
• Speak with a BC estates lawyer soon, since deadlines may apply.

Frequently asked questions