After the initial loss following the death of a loved one, families must begin the process of distributing the estate. In most situations, this includes reviewing the will and following the loved one’s last wishes. However, in cases where the provisions of the will seem shocking or absurd, families may begin to suspect that the will-maker was subjected to undue influence while executing the will.
In some cases, it may be that one or more parties have exerted an undue influence on the testator by applying pressure or coercion. Other times, it’s simple manipulation. The unfortunate reality is that the elderly and infirm are particularly vulnerable to undue influence in the drafting of a will. This is why our lawyers will investigate both your loved one’s testamentary capacity and the relationship with other beneficiaries to determine if undue influence had occurred, and what remedies exist for your family.
What Is Undue Influence and What Is Not?
Undue influence occurs when someone who is in a position of trust or power pressures another individual to act in a way that is not in their best interest. Though the individual asserting this power over the will-maker can be a variety of individuals, most often it involves a family member or a caregiver.
Because the will-maker was likely dependent physically and/or psychologically on that individual, manipulation is often easily achieved.
However, not all influence may constitute undue influence. For example, a family member may suggest that a specific gift or aspect of the estate be distributed in such a way, but if there was a lack of evidence that the pressure was enough to change the will-maker’s mind, it is not undue influence.
It’s worth noting that there can also be undue influence during the testator’s life which involves the transfer of assets prior to death.
Proving Undue Influence: Proof in Solemn Form
If a will is believed to have been drafted as a result of undue influence, it must undergo the process of ‘proof in solemn form.’
Under the process of proof in solemn form, the person/persons who find the will to be valid must prove:
- The will was completed in compliance with the law,
- The will-maker knew and approved of the contents of the will, and
- The will-maker had the necessary mental capacity to make a will.
However, if the family believes there are suspicious circumstances, the court will review those challenges. Such circumstances include when the person who received a gift from the will was in a position where the potential for dependence or domination was present.
Should the court find the will was created under undue influence, the will can be set aside and the estate will be distributed according to intestacy laws established in the Wills, Estates and Succession Act (“WESA”).
Factors Used to Determine Undue Influence
There are various signs that undue influence has occurred such as:
- Emotional/physical changes to the will-maker
But to determine if these signs are truly a result of undue influence, the courts will review if:
- The beneficiary had the opportunity to exercise undue influence over the will-maker;
- The beneficiary was actively involved in the creation of the will;
- The will-maker received legal advice about the will prior to signing;
- The beneficiary was not a family member, but had been the object of the will maker’s ‘bounty’; or
- The will-maker was susceptible to manipulation because of mental frailties.
Have a Case of Undue Influence? Call Klein Lawyers
If you have a loved one who may have been a victim of undue influence, there are options for you and your family. At Klein Lawyers, our estate litigation lawyers will review the will and navigate the legality of your undue influence claim, ensuring you get what is rightfully yours.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.