- If you show that another person was in a position where dependence or domination of the will-maker was possible, the burden shifts to the person defending the will or gift.
- Undue influence is only one ground for challenging a will; capacity and the signing formalities are others.
- A notice of dispute can pause probate while you gather evidence.
You may suspect that a caregiver, a relative or a new friend pressured someone into changing a will. Proving that is hard, because the pressure usually happened in private and the will-maker can no longer explain.
British Columbia has a rule that can help the person raising the concern. This article explains who has to prove what, what kind of evidence helps, and what to do while you decide on next steps.
This article covers the law of British Columbia.
What undue influence means
In plain words, undue influence means that a will or gift reflects someone else's pressure or control rather than the will-maker's own free choice. Ordinary persuasion, affection or help with daily life is not necessarily improper. The question is whether the will-maker's own wishes were overborne.
Who has to prove what
Under section 52 of the Wills, Estates and Succession Act (WESA), the person claiming undue influence starts by showing that another person was in a position where the potential for dependence or domination of the will-maker was present. If that is shown, the party defending the will or gift then has the onus of proving that no undue influence was exercised.
This is why relationships matter. A caregiver, a person who managed the will-maker's finances, or someone the will-maker relied on heavily for daily needs may fit the type of position the rule describes. Whether a specific relationship meets the rule depends on the facts.
Evidence that can help
- Records showing how dependent the will-maker was, such as care notes, medical reports and daily-living arrangements
- Evidence of who arranged the lawyer, who attended meetings and who passed on instructions
- Changes between earlier wills and the new one, especially if the change favours the person in the position of influence
- Changes in the will-maker's contact with other family members or friends
- Bank records and gifts made around the same time
- Statements by the will-maker about their intentions, to the extent they were recorded or witnessed
Write down names of people who saw the relationship firsthand, and keep any messages, emails or notes safe.
Related grounds and what the court may do
Undue influence is often raised alongside other concerns. A person must be 16 or older and mentally capable to make a will. A will must also meet the signing and witnessing formalities, though the court may order that a record or document is fully effective as a will even if it does not comply with the Act.
If you are a spouse or child, a wills variation claim is a separate route. It asks the court to order adequate provision, and it must be started within 180 days from the date the representation grant is issued in British Columbia.
What to do next
- Search Court Services Online for probate and caveat/dispute cases using all or part of the deceased's last name, to see whether a file exists.
- Consider a notice of dispute in Form P29, which must be filed before the earlier of the issue of an authorization or the estate grant.
- While a notice of dispute is in effect, the registrar must not issue an estate grant. It stops being in effect one year after filing unless renewed, or earlier if withdrawn, removed by the court, or the will is proved in solemn form.
- Any person interested in the estate may apply to remove a notice of dispute, and the court may do so if the filing is not in the best interests of the estate.
- Get legal advice early about your evidence and the cost risk. Costs generally go to the successful party unless the court orders otherwise.
Frequently asked questions
Do I have to prove undue influence from scratch?
Not entirely. You must first show that another person was in a position where the potential for dependence or domination of the will-maker was present. If you do, the person defending the will or gift must prove that no undue influence was exercised.
Does a caregiver always count as being in that position?
No. Whether a caregiver or relative was in such a position depends on the facts of the relationship. A lawyer can assess how your evidence fits the rule in section 52.
Can I stop probate while I gather evidence?
A notice of dispute can pause the grant. While it is in effect, the registrar must not issue an estate grant. It lasts one year unless the court renews it, or it ends earlier in the situations the rules describe.
Is undue influence the same as lack of capacity?
No. Capacity is about whether the person was mentally capable of making a will. Undue influence is about whether pressure from another person affected the will or gift. A challenge may raise both.
Sources
- Wills, Estates and Succession Act, SBC 2009, c 13, s 60 (BC Laws) — bclaws.gov.bc.ca
- Supreme Court Civil Rules, BC Reg 168/2009, Rule 25-10(1) (BC Laws) — bclaws.gov.bc.ca
- CSO Help – Search by Deceased Name, Government of BC — justice.gov.bc.ca
- Supreme Court Civil Rules, Rule 14-1 (BC Laws) — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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