Why Undue Influence During Will Making is Difficult to Prove

If a claimant can prove that an interested party unduly influenced the testator at the time of writing, courts in BC can rule the will invalid. Undue influence is described in British Columbia as

“An influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality, does not, and expresses something else which he or she did not really mean.”

Proving an undue influence claim is difficult because the influence must overpower the testator’s wishes, meaning the will doesn’t reflect their actual wishes. BC allows suggestions and persuasion and does not consider them forms of undue influence. The most common successful undue influence claims involve a will-writer tricked into giving a larger portion of their estate to an undeserving person. Usually, this is someone who recently entered the testator’s life and received a significant portion of the estate.

An Undue Influence Claim: Who has the Burden of Proof?

The burden of proof is typically on the claimant to prove that the will-maker was under undue influence at the time of writing. Although, the burden of proof can shift to the defendant if the claimant shows a special relationship between the will-maker and the other person substantially benefiting from the will – known as the presumption of undue influence. The classic example of this is when the will-maker is a parent who is dependent on one of their children for their day-to-day care. Once this special relationship is established, the person who benefited from the gift must prove that it was not made because of undue influence. If he or she cannot do this, the court can cancel or reduce the gift, or even set the entire will aside.

Will Writing While Terminally Ill

While unsuccessful, there was a recent case in the BC Supreme Court where a woman’s godchildren were claiming her will was invalid on the grounds of undue influence. The woman was in the hospital with an inoperable brain tumour in 2016. During her time in the hospital, she rewrote her will from 2009 – writing two new wills within five days. The woman had no children; however, her godchildren argued before the courts that she was under undue influence when writing these final two wills.

They believed that the will from 2009, not the other two, represented her final intentions and should be valid. The defendants, the woman’s common-law spouse and his grandchildren, argued that the new wills expressed her mind and it represented her wishes. The new wills were similar in most aspects to the 2009 will; however, the new wills gave more to the common-law spouse and his grandchildren, at the expense of the godchildren’s shares of the estate.

The Role of Legal and Medical Professionals

On the day she wrote the first new will, she met with a doctor who confirmed her awareness of her terminal illness and her limited time left. The lawyer who helped prepare the will that day described her as very confused about why the lawyer was visiting and what he was doing with her affairs. The lawyer further explained that the woman could engage in conversation, had a clear memory of some things, but had troubles remembering things like the date and where she was. The woman also could not give the exact names of her grandchildren. Further, she was unable to answer the lawyer’s open-ended questions and needed prompts to give answers. The woman was clearly not in a sound mental state when she prepared the will.

The lawyer and her two legal assistants confirmed no signs of confusion or misunderstanding from her on the day they signed the wills. The lawyer explained clearly that the will did not have to be changed unless she wanted to make specific adjustments. The judge needed to determine if her mental state resulted from her brain tumour, the stress of her terminal illness, or if her common-law spouse had unduly influenced her.

Was This Proof of Undue Influence?

The case facts suggest that her common-law spouse likely persuaded the woman to some extent to make these changes. While there may have been significant influence, the godchildren could not prove that there was undue influence – that she was expressing something that she did not really mean in her will. She had spent nearly 30 years with her spouse, and it made sense that she would want to include his grandchildren in her will.

The judge explained that it’s not uncommon for people to rewrite their will after learning they’re terminally ill. People who are in this position tend to think about their estate and what will happen upon their passing. In the end, the burden of proof was on the godchildren to prove that the woman was under undue influence and they could not do this to the satisfaction of the courts. Even though the woman might not have been in the clearest mental state, there was no proof beyond a reasonable doubt that she didn’t intend to make these changes to her will. The court dismissed the undue influence claim, ruling that the woman had the necessary testamentary capacity to execute the wills and found no evidence of undue influence.

What This Means for Future Cases

This case helps to clarify how a claim for undue influence can be successful. Will-writing is stressful for most people, and it is assuring to know that final wishes will be honoured. In only the most extreme and conclusive cases will a court revise a person’s will. The doctrine of undue influence is meant to further ensure that will-maker’s true intentions are respected. If you think that someone you loved was under undue influence during their will making, contact an experienced estate lawyer today.

For more information, read our page on proving an undue influence claim in BC.

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