Rebutting the Presumption of Undue Influence

Rebutting the PresumptionThorsteinson 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 after the nature and effect of the
transaction was fully explained to the donee by an independent qualified
person (i.e. a lawyer) so completely as to satisfy the court that the donor
was acting independently of any influence from the donee and with full
appreciation of what he or she was doing. (Halsbury’s Laws of Canada,
Food/Gifts, p. 307) Independent legal advice is not the only way, however,
to rebut the presumption of advancement.

If other circumstances are sufficient to establish that the gift was the
spontaneous act of the donor, exercising an independent will, there is no
reason to disregard those circumstances merely because they do not include
independent legal advice from a lawyer.

(Halsbury’s, Food/Gifts, supra, p. 307)

81 The advice given must be competent and provided by an honest advisor
acting solely in the interest of the donor. (Brandon v. Brandon  2001] O.J. No. 2986 (QL) (Ont.Sup.Ct.))

86 That said, lack of adequate, independent legal advice is not a
ground unto itself to justify overturning a gift. As previously noted, the
presence or absence of independent legal advice is but one way in which to
rebut the presumption of undue influence. Other circumstances may be
considered.

The nature of their relationship at the relevant time, even
though one of elderly parent and child, does not in the circumstances raise
a presumption of undue influence, and even if it did, I find the presumption
has been rebutted.

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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