S. 52 WESA: The Presumption of Undue Influence

S. 52 WESA: The Presumption of Undue Influence

Trudeau v Turpin Estate 2019 BCSC 150 is a recent decision dismissing a claim for undue influence and discussing in particular section 52 WESA and the presumption of undue influence that it sets out.

Section 52 of the Wills, Estates and Succession act WESA provides as follows:

52. In a proceeding, if a person claims that a will or any provision of that resulted from another person

a) Being in a position where the potential for dependents or domination of the will maker was present, and
b) using that position to unduly influence the will maker to make the will or the provision of it that is challenged, and establishes that the other person was in a position where the potential for the dependents or domination of the will maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person is in the position where the potential for dependents or domination of the will maker was present did not exercise undue influence over the will maker with respect to the will or the provision of it that is challenged.

Undue influence is influence which over bears the will of the person influence, so that what he or she does is not his or her own act Longmuir v Holland 2000 BCCA 538 at 71.

Rebutting the Presumption of Undue Influence

In Stewart v McLean 2010 BCSC 64 the court summarized the legal approach to the question of whether the presumption of undue influence has been rebutted, at paragraph 97:

• To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own full, free and informed thought
• a defendant could establish by showing:

a) no actual influence was used in the particular transaction or the lack of opportunity to influence the donor;
b) the donor had independent legal advice or the opportunity to obtain independent advice;
c) the donor had the ability to resist any such influence
d) the donor knew and appreciated what she was doing
e) undue delay in prosecuting the claim, acquiescence or confirmation by the deceased
f) another factor may be the magnitude of the benefit or disadvantage

The statements of law were confirmed by the BC Court of Appeal in Cowpar-Smith v Morgan 2016 BCCA 200 at paragraphs 49 – 53.

In the Trudeau v tTurpin Estate decision, the court found that the plaintiff failed to establish that the defendant was in a position where the potential for dependents or domination of the will maker was present.

The court found that the evidence was overwhelming that the defendant did not exercise undue influence over the will maker.

In particular the court relied upon journal entries and various notes written by the deceased about her testamentary intentions. The court found them “illuminating”.

The evidence called by the defence was typical of undue influence defence testimony-and usually persuasive to the court, to demonstrate that throughout her adult life, the deceased was a stern, strong-willed, no-nonsense and domineering woman. She had strong points of view and unrelenting opinions and philosophies and was not easily dissuaded from them. She was well able to stand up for herself, defend her beliefs, and was quite prepared to assert her views. Anyone who defied her suffered her wrath.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 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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