A last will and testament is intended to reflect a will-maker’s genuine, final wishes. In BC, individuals have broad testamentary freedom, meaning they can decide how their assets are distributed and who will benefit from their estate, within the confines of the law. They may choose to leave assets to family members, friends, caregivers, or others, and they may also decide to exclude certain individuals. However, those decisions must be their own.
Undue influence arises when a will-maker is pressured, controlled, or manipulated by someone who stands to benefit from doing so. In these situations, the will no longer reflects the will-maker’s true intentions. Rather, it reflects the wishes of the person exerting influence; individuals who would otherwise have been intended beneficiaries may receive less or nothing at all.
What is Undue Influence?
In the context of estate litigation, the definition of undue influence refers to circumstances where a will reflects the intentions of someone other than the will-maker.
Undue influence occurs when pressure, control, or manipulation overpowers the will-maker’s free will. While it is normal for individuals to discuss estate planning decisions with family members or trusted advisors, influence becomes legally problematic when it replaces the will-maker’s independent judgment with the wishes of another person.
Under BC law, undue influence does not require proof of threats, violence, or fraud. Instead, courts recognize that it:
- Can be subtle and gradual
- Often occurs in private, without witnesses
- May arise through emotional dependency rather than overt coercion
- Frequently involves a vulnerable will-maker
A will-maker may be vulnerable due to:
- Advanced age
- Physical illness or frailty
- Cognitive decline
- Grief, loneliness, or emotional dependence
- Reliance on another person for care or financial management
Importantly, a person can have legal testamentary capacity and still be subject to undue influence. Capacity focuses on whether the individual understood the nature and effect of making a will. Undue influence focuses on whether their decision was truly voluntary.
How Undue Influence is Treated Under WESA
Undue influence in estate disputes is governed by Section 52 of the Wills, Estates, and Succession Act (WESA). This section gives courts the authority to address situations where a will may have been the result of improper pressure or control.
Under WESA, the law allows a court to presume undue influence when:
- A person was in a position to dominate or control the will-maker
- That person stands to benefit from the will
This presumption is often referred to as a “reverse onus” because it can shift the burden of proof from the challenger to the beneficiary. If there is evidence of suspicious circumstances, such as a caregiver unexpectedly receiving a significant gift or a new will that dramatically changes the estate, the beneficiary must demonstrate that the will-maker acted freely and voluntarily.
This approach differs from most other civil claims, where the individual challenging a document typically carries the full burden of proof. By allowing the court to presume undue influence in certain situations, WESA provides a framework for protecting the will-maker’s true intentions while ensuring that beneficiaries cannot benefit from improper pressure or manipulation.
Signs of Undue Influence
Courts look for patterns of behaviour and circumstances that suggest the will-maker’s decisions may have been shaped by improper pressure rather than their own free will.
Dependency on One Person
A will-maker may become dependent on a single individual for daily care, housing, transportation, or financial management, giving that person significant control over their routine and decision-making. Courts recognize that even when a will-maker appears mentally capable, a high level of dependency can create circumstances where undue influence is more likely, particularly if the caregiver stands to benefit from the estate.
Isolation from Family or Advisors
Undue influence often occurs when a will-maker is isolated from family members, long-time friends, or trusted legal and financial advisors. The influencer may control visits, phone calls, or access to important information, limiting the will-maker’s exposure to alternative perspectives. This type of isolation can prevent the will-maker from making independent decisions and is a key factor courts consider when evaluating the validity of a will.
Involvement in Preparing the Will
Courts pay close attention when a beneficiary is actively involved in preparing a will. This includes arranging meetings with the lawyer, providing instructions on behalf of the will-maker, or being present during discussions or the signing of the will. If the will-maker does not receive independent legal advice or private consultations with their lawyer, these circumstances indicate that the will may not fully reflect the will-maker’s true intentions.
Sudden or Significant Changes to Estate Plans
A sudden or substantial change to a will can be a sign of undue influence, particularly when it disproportionately benefits one person, disinherits close family members, or reverses long-standing estate plans. Changes made during illness, frailty, or shortly before death are often scrutinized to determine whether they align with the will-maker’s historical intentions or were shaped by external pressure.
Vulnerability at the Time the Will Was Made
Vulnerability can increase the risk of undue influence, even when the will-maker has legal capacity. Physical illness, disability, or cognitive decline may limit independence, while emotional vulnerability caused by grief, loneliness, or fear of abandonment can make a person more susceptible to pressure.
Pressure, Fear, or Conditional Care
Pressure, fear, or conditional care occurs when a will-maker feels anxious about displeasing someone or losing essential care, companionship, or support. Gifts or inheritances may appear tied to continued assistance, emotional support, or housing arrangements. Even when this pressure is implied rather than explicitly stated, it can still affect the will-maker’s decisions and impact the distribution of their estate.
Get Help From a Lawyer
At Stephens & Holman, our estate litigation team helps clients navigate complex estate litigation cases, including those where undue influence is suspected. We assess whether a will reflects the true intentions of the will-maker, gather and review evidence, and provide guidance on the process of contesting a will in BC. Whether representing beneficiaries or executors, our lawyers work to protect your rights and ensure that the distribution of the estate reflects the will-maker’s genuine wishes.