Legal Wills.

Canada: Undue Influence: New Law Shifts Burden Of Proof

September 30 2013, by Lauren Liang (abridged)

Making a valid will requires not only that the will-maker has the mental capacity to understand what they are doing, but also that the will reflects the true wishes of the will-maker and not the undue influence of another person.

…The important question is, at what point does influence cross the line and become undue influence? … undue influence occurs when a person influences a will-maker by force, fraud, fear or in any other manner so as to overbear and coerce the will-maker to make a will that does not reflect their true wishes…. Where influence is present to this extent, the will no longer reflects the will-maker’s true intentions and desires, but rather the intentions and desires of someone else.

Under the current law, it is quite difficult to challenge the validity of a will on the grounds of undue influence, in part because the person challenging the will bears the legal burden of proving undue influence. Often, the challengers are unable to meet this burden…

BC legislative act… the law is changing with the introduction of the Wills, Estates and Succession Act (“WESA”), effective March 31, 2014. Section 52 of WESA creates a presumption of undue influence where certain types of relationships exist. Under this provision, a party challenging a will based on undue influence will need only show that the will-maker was in a position of dependence or submission to another person. Once that relationship has been established, the party defending the will’s validity has the burden to prove that he or she exercised no undue influence over the will-maker.

This shift in the legal burden may result in an increase in undue influence challenges. Accordingly, lawyers who draft wills must be more alert than ever to identify “red flags”. … …In circumstances in which suspicion of undue influence remains high after the lawyer has undertaken a reasonable investigation, the lawyer should decline to draft the will…

If you are making a will and are concerned that your true wishes may be challenged by disappointed relatives based on allegations of undue influence, you should provide your lawyer with as much information as possible on your relationship with your heirs and beneficiaries, and the reasons why you want your assets to be distributed the way you wish.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. It should be stated that Kelowna Divorce Mediation does not prepare wills since only lawyers can do so.

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