Who Has to Prove Undue Influence in a BC Will Challenge?

Finding out that a parent or relative changed their will late in life, in favour of someone who was close to them, can raise hard questions. You may wonder whether the change reflected their wishes or whether someone pressured them. The first practical question is usually: who has to prove what?

In British Columbia the answer depends on a general rule and an important statutory exception. This article explains the burden of proof, how a challenge reaches court, and where a different kind of claim may fit. It is general information, not advice on your situation.

This article covers the law of British Columbia.

The starting rule: the challenger proves it

Undue influence means a will reflects pressure from someone else rather than the will-maker's own wishes. Under the general approach set out in Vout v. Hay, a person who alleges undue influence or fraud usually still has to prove it.

Suspicious circumstances do not change that on their own. They may raise a suspicion of fraud or undue influence, but they do no more than rebut the presumption of capacity and of knowledge and approval. Where the suspicious circumstances relate to mental capacity, the person putting forward the will takes back the legal burden of establishing capacity.

How WESA section 52 can shift the onus

Section 52 of the Wills, Estates and Succession Act (WESA) changes the starting rule in one situation. 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 must prove that no undue influence was exercised.

The challenger carries the first step. The government explainer describes this as showing that the other person was in a position of potential dependence or domination over the will-maker and that the position was used to influence the will. Only then does the onus move to the defender. This lines up the rules for wills with those for gifts made during life.

Standard of proof and what suspicion does

Suspicious circumstances do not raise the standard of proof. The evidence is looked at more carefully in line with how serious the suspicion is, but the standard remains the balance of probabilities.

In plain terms, a challenger does not need certainty, but needs evidence that makes the claim more likely than not. What counts as a position of potential dependence or domination, and what evidence shows it, depends heavily on the facts, so a lawyer can help you assess it.

How a challenge reaches court

• Notice of dispute: 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 it prevents a grant from being issued before the person can apply for an order requiring security.
• Proof in solemn form: a 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. This is where capacity, undue influence and knowledge-and-approval questions are decided.
• Documents: the court may order a person who has control or possession of certain documents or property to bring them to court, which a challenger can use to obtain original wills and related documents.
• Distribution: the personal representative must not distribute the estate within 210 days after the grant, except by court order, which gives a window to act.

Filing a notice of dispute does not last forever. It generally lasts one year unless renewed by court order, and a person may not file more than one for any one estate. Check current rule numbering and forms before relying on them, since the probate rules have been amended.

A different route: wills variation, and what to do next

If you are a spouse or child who was left out, you may not need to prove undue influence at all. If a will does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's 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 started 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 of time. Time limits for a validity challenge are less simple, and which limitation period applies depends on the type of proceeding, so get advice early.

• Note the date of any probate notice and watch for a grant being issued.
• Gather the will, earlier wills, medical records and notes about who was involved in the change.
• Write down who helped the will-maker, and how dependent they were on that person.
• Ask a lawyer whether to file a notice of dispute, and about deadlines.
• If you are a spouse or child, ask about a wills variation claim as well.

Frequently asked questions