Ali v Walters Estate 2018 BCSC 1032 reviews the law relating to rebutting the presumption of undue influence in regard to a will as dealt with in S.52 of WESA that creates such a presumption and specifies who bears the burden of proof.
S 52 WESA states that 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 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 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.
In Ali , the court found that the presumption was unnecessary to address because ample evidence made clear that Ali did not exercise do undue influence, and had the presumption applied, she had rebutted it.
The court followed Leung v Chan 2013 BCSC 976:
“ in order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will- maker mounted to coercion, such that the will did not reflect the true intentions of free will- maker and was not the product of the will- makers own act. The undue influence must constitute coercion, which could not be resisted by the will maker and which destroyed his or her free agency. It is well-established on the authorities that if the will- maker remains able to act freely, the exercise of significant advice or persuasion on the will- maker, or an attempt to appeal to the will- maker, or the mere desire of the will- maker to gratify the wishes of another, will not amount to undue influence.
In Woods v Woods 2013 BCSC 1030 aat para.37 stated that undue influence is not equivalent to coercion. To amount to undue influence, something more is required that causes the testator to express something that they do not really mean, or that does not express their own mind or free will. Sometimes this same concept is expressed as requiring that the donor acted of their own free will and informed thought in the transaction “ Geffen v Goodman (1991) 2 SCR 353 at 378-379.
In Stewart v. McLean 2010 BCSC 64 the court summarized the factors that assist in determining whether the donor or gave the gift is a result of their own free full and informed thought:
To rebut the presumption of undue influence, the defendant must show that the donor gave the gift is a result of her own full, free and informed thought. A defendant could establish this 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 advice or the opportunity to obtain independent advice;
c) the donor had the ability to resist any such influence ( Calbick v Wayne 2009 BCSC 1222 at 64);
d) the donor knew and appreciated what he or she was doing Vout v Hay (1995) 2 SCR 876 AT para. 29; or
e) undue delay in prosecuting the claim, acquiescence or confirmation by the deceased.
Another relevant factor may be the magnitude of the benefit or disadvantage.
The Court of Appeal in Cowper-Smith v. Morgan 2016 BCCA 200 adopted the following, referring to the Stewart decision:
Factors to be considered in determining whether the donor acted of her own full, free and informed thought in entering the transaction include:
a) the lack of actual influence or opportunity to influence the donor;
b) the receipt of or opportunity to obtain independent legal advice;
c) the donor’s ability to resist any such influence
d) the donors knowledge and appreciation about what she was doing