Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity. The court found that the testator who is aged… Read more

When The Presumption of Undue Influence Arises

When The Presumption of Undue Influence Arises

Burkett v Burkett Estate 2018 BCSC 320 held that the presumption of undue influence in gifts arises in circumstances where the relationship between the parties gives rise to the potential domination of one party by another, and once established that the potential for undue influence… Read more

23 Signs of Undue Influence in Dysfunctional Families

23 Signs of Undue Influence in Dysfunctional Families

Undue influence is very common in dysfunctional families and many of the indicators to watch out for are summarized in this blog. I am frequently approached by members of a family who suspect that one or more of their siblings have unduly influenced or will… Read more

Predatory Marriage

Predatory Marriage

Probably every experienced estate litigation lawyer has had court actions involving a predatory spouse. The phenomenon is disturbing and increasingly common in our society as individuals both live longer and accumulate more wealth. In simple terms, predatory spouses take advantage of elderly victims and assume… Read more

Undue Influence: Presumption Rebutted

Undue Influence: Presumption Rebutted

Rebutting the Presumption of Undue Influence Grosseth Estate v Grosseth 2017 BCSC 2055 was a claim for resulting trust and presumption of undue influence that was dismissed by the court that found that the presumption of undue influence had been rebutted. The deceased died at… Read more

Undue Influence: Shifts in Burden of Proof Means More Plaintiffs Win

Undue influence is nearly always done in secrecy. It’s behind closed doors. There’s never many witnesses. It’s the things that are said like, I’m going to put you in a care home if you don’t leave anything to me. There are no witnesses but it… Read more

Mental Capacity and Marriage

This video is about capacity to marry. That’s mental capacity. We all know the story of Anna Nicole Smith and her love affair and marriage to the 94 year-old billionaire. After his untimely passing, there was years and years of litigation which centered on whether… Read more

Dysfunctional Families: The Predator Spouse

Dysfunctional Families: The Predator Spouse

A disturbing and increasing  trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually  financial affairs and marries the victim in short order. Even if the family had been reasonably functional prior to… Read more

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… Read more

Suspicious Circumstances

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 will… Read more

Independent Legal Advice and Undue Influence

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: Undue Influence Presumption re Dependence

Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of  feeble mind. Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re  the validity of the deceased’s… Read more

Winning an Undue Influence Case

Winning an Undue Influence Case

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 the testator had sufficient mental capacity and therefore allows the will to be propounded. The loss of an undue influence… Read more

What the Court Needs to Know to Win a Wills Variation Action

S 60 of WESA allows the court to exercise its discretion re the claims of spouses and children against the assets of a deceased’s estate, on the basis that they were not adequately provided for in the estate.   The right to bring a Wills… Read more

Wills Variation Act Not Affected By WESA

The original plan for WESA was to restrict the right of an independent adult child to bring a claim against his or her parents estate on the basis that he or she will was not adequately provided for. A great deal of discussion took place… Read more