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 scares the hell out of the vulnerable person. They lose their freedom of thought and gradually, they lose their independency and they become very dependent on that caregiver and make their will accordingly.

It seems to me rather that one speaks of influence, one is really referring to the ability of one person to nominate the will of another whether it’s through manipulation or coercion or outright or subtle abuse of authority. Basically, they conclude with to dominate the will of another simply means to exercise a persuasive influence over him or her. You see, it’s not coercion now. It’s just persuasive influence. That’s a huge change.

Proving coercion is almost impossible. You have to have literally a gun to the head and witnesses witnessing that. But in these positions of domination and vulnerability, it’s just persuasive influence. The ability to exercise such influence may arise from the relationship of trust and confidence that may arise from other relationships as well. The point is that there is nothing per reprehensible about persons in a relationship of trust and confidence exerting influence, even undue influence over their beneficiaries. It depends on their motivation and objective to which they seek to achieve. And again, that’s an evidentiary matter but with the presumption, it’s a huge factor and a leg up. I predict there’s going to be more undue influence claims and that more plaintiffs are finally going to win.

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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