Conflicts involving inheritance under a will can be stressful and all-encompassing. A common type of will dispute arises when a family member or another party seeks to challenge a will on the grounds that it is legally invalid.
When it comes to challenging a will, a person may argue that the will is legally invalid for a range of reasons, such as the will-maker (testator) lacked the mental capacity to create the will at the time it was made, or the testator was forced to make the will through undue influence by someone else.
This article looks at challenging a will based on undue influence, along with a recent decision of the Supreme Court of British Columbia in which the testator’s daughter sought to challenge a will that left the residue of her estate solely to the testator’s son.
The legal test for undue influence
A court may set aside transactions, including wills induced by undue influence. This is designed to prevent people from being taken advantage of by others.
What is the presumption of undue influence?
To trigger the presumption of undue influence, the person challenging the will first need to establish the existence of a relationship of potential dominance. This may be found in the case of a parent and child, but it depends on the circumstances.
The next phase of the inquiry involves an examination of the nature of the transaction. Notably, the plaintiff must not show reprehensible conduct or malicious intent. It is sufficient that the person exercised dominance over the transaction through persuasive influence.
How can the presumption of undue influence be rebutted?
If the plaintiff successfully establishes the presumption, the defendant can rebut it by establishing that the testator made the will based on their own full, free and informed thought. This may involve showing that no actual influence was exerted, that the testator could resist any influence, that the testator knew and appreciated what they were doing, and that the testator received independent legal advice.
Concerning legal advice, relevant factors include whether the party benefitting from the transaction was present when the advice was given or gave instructions to the lawyer and whether the lawyer discussed financial implications and other options with the testator.
Mother executed new will leaving residue of estate solely to her son
In Young v Veselic, the testator originally had a will that shared her estate equally between her son and daughter. She became ill and moved from Golden, where the daughter lived, to Kelowna, where the son lived. The daughter continued to visit and call her mother.
A friend testified that the testator spoke about her intention to leave everything to her son because he was actively taking care of her, and she was concerned that the daughter might use the inheritance to fund a drug addiction.
The son met with a lawyer, and then the testator met with the lawyer alone to give instructions. The lawyer said he pressed her on whether she truly wanted to remove her daughter from the will. He prepared a second will that provided the residue of the estate to the son and a transfer document affecting a transfer of the testator’s home to joint ownership with the son, and the testator executed the documents. She died a month later.
Daughter argued that the mother was under undue influence
The daughter challenged the will and transferred on the basis of undue influence. She presented evidence from others that the testator’s demeanour changed when the son was present, “almost like she was afraid.”
Justice Branch found that there was a presumption of undue influence. His Honour noted that the relationship between an adult child and an elderly, ailing parent has been recognized as a relationship which may elicit dependency, and that the son had an opportunity to exert pressure on the testator given her age and estate planning and the role played by her son in managing her healthcare.
Son rebutted presumption of undue influence; court found will valid
Justice Branch decided that the son met his burden of rebutting the presumption of undue influence.
His Honour found that the testator could resist any influence, noting there was little evidence that she was afraid of her son. The testator knew what she was doing and made her own decisions after receiving independent legal advice. While the lawyer did not discuss other options with the testator and did not inquire into the reasons for disinheriting the daughter, the son was not present when the testator gave instructions, and the lawyer ensured that the testator understood the nature of the transactions and was pursuing them freely.
As a result, the court found the second will valid. This is not necessarily the end, though – the daughter has sought a will variation on the ground that it does not adequately provide for the proper maintenance and support of the testator’s child, which will be heard later. Justice Branch concluded:
“She did not need the son whispering in her ear, as she had formed her own view of the daughter and her conduct, and the wisdom of her decision to disinherit. The conclusions the [mother] reached may have been unfair and misguided (which may be relevant to any subsequent wills variation proceeding), but I cannot find that they were the result of undue influence by the son.”
Contact Meridian Law Group in Vancouver for Representation in Will Disputes
At Meridian Law Group, we understand that disagreements about an estate’s distribution are often highly emotional. We help clients to move on by providing them with robust advice on will validity and creative legal solutions.
The talented and determined estate litigators at Meridian Law Group in Vancouver provide skilled representation and pragmatic advice for clients involved in estate disputes. They help clients resolve estate disputes swiftly and with as little conflict as possible to preserve estate assets. Located in downtown Vancouver, the firm proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your estate matter, please call 604-687-2277 or reach out online.