Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading particulars of allegations of undue influence  so that the defendant can meet the claim and not be taken by surprise at trial.   Particulars of Undue Influence   [15]        SCCR 3-7 (18) requires… Read more

Suspicious Circumstances

Arauju v Neto 2001 BCSC 935 is an undue influence /lack of capacity case that discusses suspicious circumstances.   The court found that due to suspicious circumstances the will maker was not allowed to rely upon the presumption that he was mentally capable when the… Read more

Independent Legal Advice and Undue Influence

Under normal circumstances independent legal advice, if properly given should be sufficient to rebut any presumption of undue influence, but that was not the case in Cowper-Smith v Morgan 2016 BCCA 200 where the Court of Appeal upheld the trial judge in finding inter alia… Read more

S. 52 WESA-Undue Influence Presumption re Dependence

S. 52 WESA is a new provision that applies where a person establishes that a party was in a position where there was potential for dependence or domination of the will maker, and alleges that a gift in the will, resulted from the party using… Read more

Rebutting the Presumption of Undue Influence

Thorsteinson v Olson 2014 SKQB 237 , a Saskatchewen decision discusses how independent legal advice will generally result in rebutting the presumption of undue influence. 80 The most obvious way to rebut the presumption of undue influence is to establish that the gift was made… Read more

Shifting the Burden of Proof In Undue Influence

Shifting the Burden of Proof Where an allegation of undue influence is founded on a dominant relationship and the evidence establishes such a relationship, the burden shifts to the party in the dominant position to show that this position was not abused in bringing about the… Read more

Rebutting a Presumption of Undue Influence

Cowper- Smith v Cowper Smith estate 2015 BCSC 1170 discusses the evidence and legal criteria required to set aside a transfer of land and a declaration of trust on the basis of undue influence, where such presumption may arise such as with a caregiver.   The… Read more

Recognizing Undue Influence

The BC Law Institute published a checklist on recognizing undue influence situations for lawyers and dealing it: 1. Interview will-maker alone (Basic Rule). Rationale: Ensure it is clear that professional is acting for will-maker. Professional needs to avoid appearance of a joint retainer. Confidentiality of… Read more

The Test to Set Aside a Presumption of Undue Influence

In certain situations, there is a presumption of undue influence as per the following quote from the SCC in Geffen v Goodman Estate ( 1991) 2 SCR 353, para 41. Following the Geffen quote is a portion of the decision of Stewart v McLean 2010… Read more

WESA Undue Influence

I was honored to be invited to speak at a seminar on WESA hosted by Trial Lawyers Association of BC this past Friday June 6 2014 . The full one day seminar covered everything a trial lawyer needs to know about the changes in the Wills, Estates and… Read more

Winning an Undue Influence Case

In my experience in estate litigation, probably the most difficult issue to win at trial is that of undue influence. A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds… Read more

Where There Is a Cult, There Is Undue Influence

Undue Influence and Cults In recent years there have been a rash of news stories about people who have escaped from various cults, sects, communes or other extremely private organizations ,such as Scientology. Today’s news brings the story of a Marxist commune in South London… Read more

How to Win an Undue Influence Case

This article contains  my thoughts collected after years of estate litigation on the points to focus in order  to win an undue influence case. In my experience in estate litigation, probably the most difficult issue to win at trial is that of undue influence. A review of… Read more

Mr. Attorney – Shine The Light on Undue Influence

( This article was written in 2006 to the attorney general to encourage the introduction of a presumption of undue influence when large bequests are left to person  in a position of dominance or dependence. It was successful and resulted in Section 52 of WESA,… Read more

Proving Undue Influence In Wills

Proving Undue Influence In Wills Has Improved Under WESA Under s. 52 of the new WESA Legislation which came  in effect on April 1, 2014)), the onus of disproving undue influence has shifted to the person who has received the gift under the will where they… Read more