Pleading Particulars of Undue Influence

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 that full particulars of undue influence, with dates and items if applicable, must be stated in the pleading. The particulars are required to inform the other side of the nature of the case to be met, prevent the other side from being taken by surprise at trial, enable the other side to know what evidence they ought to prepare for trial, to limit the generality of the pleadings, and to tie the hands of the plaintiffs: Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 at para. 15. The particulars to be pled in a claim alleging undue influence have been discussed in Hopper v. Dunsmuir (No. 3), [1903] B.C.J. No. 55, Winn v. McKercher, [1956] B.C.J. No. 25, and more recently in Harrison v. Apperloo, 2016 BCSC 1129.

[16]        The defendants’ main complaint about the undue influence claim is that the plea covers a period of several years if not decades, and does not identify specific instances or even narrow time frames in which the influence occurred.

[17]        Having now had the opportunity to fully review the NOCC, I find that the plaintiffs have provided sufficient particulars of the allegations of undue influence in order to delineate the issues between the parties and allow the defendants to prepare for examinations for discovery and trial. The allegation of undue influence as pled does indeed cover a lengthy period, but the circumstances of that influence and even the acts themselves are described in the pleading. I note, furthermore, that the defendants have been able to deliver their response to the NOCC without having further particulars. The defendants have not demonstrated on a balance of probabilities that there is non-compliance with SCCR 3-7 (18).

Harrison v Aperloo 2016 BCSC 1129 stated in part:

[12]         The remaining purported pleas of undue influence are at least deficient. The language used indeed connotes legal conclusions rather than material facts upon proof of which a legal conclusion could be made. An example of a particularized plea of undue influence is disclosed in Longmuir v. Holland, 2000 BCCA 538 at para. 28:

[28]  …

10. The Plaintiff says that the 1991 Will is invalid for the following reasons:

(b)  and, or in the alternative, the execution of the will was procured by the undue influence of the Defendant Margaret Alice Holland. Particulars are as follows:

(i)  The Defendant Margaret Alice Holland was living with the Deceased in her home and had complete control over the Deceased’s person including her physical care and basic needs prior to and at the time of the execution of the 1991 Will;

(ii)  The weak physical and mental condition of the Deceased, her vulnerability and dependency upon Margaret Alice Holland prior to and at the time of the execution of the will rendered her susceptible to undue influence, which was in fact exercised;

[13]         The plaintiff says that the details or particulars of the undue influence claim will be fleshed out from the defendants through the discovery process. Aside from the fact that the plaintiff ought not to make pleas that have no known factual basis, authorities were offered which allow the plaintiff’s obligations under Rule 3-7(18) to await completion of the discovery process. The plaintiff can later add to or elaborate on the initial particulars, following the examinations: Rule 3-7 (20). Nevertheless, in order to identify the actual issues between the parties as well as permit the defendant to comply with the discovery obligations and prepare herself for an examination, it is expected that purported facts of undue influence have more than a generic quality to them. Without intending to do the plaintiff’s job for her, some particulars that might be offered are: How was the testator under the direction and control of the plaintiff? What position of trust and confidence did the defendant hold over the testator? When or how did the defendant coerce the testator? Guidance on the material facts to be pled and proven may also be found in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, an authority cited by the plaintiff.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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