Recommended Practices for Wills and Estate Lawyers Relating to Potential Undue Influence
The British Columbia Law Institute recently published Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide (“Guide”).
The Guide was prompted by forthcoming changes to the legislation governing the law of succession in British Columbia, that will apply when the province’s new Wills, Estates and Succession Act (“WESA”) finally comes into force in 2013. In particular, section 52 of the WESA will shift the burden of proof when an allegation is made that a will has been procured by undue influence in some circumstances.
Currently under the common law in British Columbia (as is the governing common law in Ontario), if an allegation of undue influence arises in the context of a will challenge, the onus is then on the challenger to prove, on the balance of probabilities, that undue influence was exerted. When the WESA comes into effect in British Columbia, the burden of proof will be shifted to those propounding the will, once the challenger has shown that the testator was in a relationship with the person alleged to have exercised undue influence in which the potential for dependence or domination of the testator was present.
As stated in the Guide, after section 52 of the WESA is in force, wills may be found invalid for undue influence more frequently in British Columbia. This makes it all the more important for estate planners in the province to recognize situations in which undue influence could arise, and take safeguards or avoid preparing wills in such situations. As set out in the Executive Summary, the aim of the Guide accordingly is to:
- raise awareness of undue influence as a potential cause of estate litigation and invalidity of a will;
- assist estate planners to recognize red flags of undue influence;
- enable will drafters to interact tactfully but effectively with will-makers to elicit information necessary for them to properly assess the will-makers’ individual situations and ability to act independently; and
- insulate wills they prepare against successful challenges based on undue influence.
While the Guide is specifically aimed at the estates bar in British Columbia, it is certainly worthy of review by wills and estates practitioners across the country.
Thanks for reading. Have a great Family Day Weekend!
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