This video is about suing a lawyer for not properly preparing a will in a timely manner or in a proper manner so that there is, at the end of the day, what are known as a disappointed beneficiaries. This is someone who expected to inherit but because of the delay or negligence on the part of the solicitor who is instructed to prepare the will, the will was never properly executed and thus the intended beneficiary did not inherit.
These people are very disappointed and when they seek legal advice, a lawyer such as myself will advise them that the courts have held for approximately 30 years now, that the sole reason that a lawyer is hired to retain to prepare a will is so that the deceased testator has provided for his intended beneficiaries. If the lawyer perhaps goes on holidays or takes an untimely delay in preparing the will, and the deceased were to die before the will was signed, then the lawyer might very well be negligent and liable to the disappointed beneficiaries.
What happens when you lose your will? Many people, in fact, do. They might be hoarders or they might be very careful people but they don’t appreciate that that document that they signed many years ago and took home is perhaps the original of a very valid document that only takes effect upon a death. So it’s important to safeguard where the will is kept.
The main reason is that if the will is lost while in your possession and then you die, you are presumed to have revoked that will and that the will no longer exists. This is a rebuttable presumption and the court will be allowed to look at whether you referred to the will, whether you referred to the will to your general nature as to what type of person you were and to any other previous wills that you might have done in an attempt to see if the presumption can be rebutted. The most important thing to remember though is to safeguard your will.
What Cy-Pres Doctrine means is that the courts will try and find a general testamentary intentioned to benefit a charity. If that charity has been misdescribed in your will, the courts will try and find another charity of a similar fashion and intention to instead inherit.
For example, in Vancouver, everyone seems to think that there’s an entity known as Children’s Hospital. It is commonly used in verbiage but it does not legally exist. So if a will is written leaving the assets to a charity such as Children’s Hospital, and the charity has been misnamed, the courts will try and put their self in the position of the testator to find out what the true intention was in benefitting a particular charity and find a substitute charity to instead benefit.
Rodgers v Rodgers Estate 2017 BCSC 518 dealt with an application for a renewal court proceedings in a wills variation claim under S 61 WESA that states in 61 ( B) that the proceeding must be served on the executor of the will no later than 30 days after the expiry of the 180 days after the representation grant ( probate) has been issued.
The plaintiff also claimed other relief that was improperly pleaded and 30 days was granted to the plaintiff to bring on an application to amend the pleadings.
The Court in Rodgers stated with respect to the renewal of an action to effect service under s 61 WESA:
22 The court has no jurisdiction to hear the wills variation action if it is not commenced within 180 days from the date the representation grant is issued in British Columbia. The court does have discretion to grant leave to extend the time for service under s. 61(1)(b).
The deadline for service is no later than 30 days after the expiry of the 180 day period referred to in s. 61(1)(a).
23 Counsel for the executor equates the extension of the time for service of a wills variation notice of civil claim to an application for a renewal of a writ. This comparison makes logical sense to me given that, in both scenarios the notice of civil claim or writ expires if it is not served within the proscribed time period.
2. Did the defendant have notice of the claim from sources other than the writ?
3. Has the defendant suffered prejudice?
4. Was the failure to serve the writ attributable to actions of the defendant? and
5. Was the plaintiff or solicitor at fault?
25 In Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, the British Columbia Court of Appeal said that it is inappropriate to have an in-depth review of the merits of the case on a renewal application but that the plaintiff is required to demonstrate that the pleadings disclose a cause of action.
If a defendant can make out a case that the action has no hope of success and is bound to fail, then the interest of justice support refusing application on those grounds.
The burden is on the defendant to prove that it is plain and obvious that the action has no merit and is bound to fail.
The Court granted an additional 30 days to serve the court process on the executor.
Two recent wills variation cases awarded the usual order of court costs to a winning party, namely Scale B.
In Dakin v Patry 2016 BCSC 1006 a plaintiff won a summary trial and was awarded scale B .
In Ciarniello v James 2016 BCSC 1805 the plaintiff again won the trial and was awarded Scale B court costs.
The court in Ciarniello restated some case law re the usual orders in estate litigation depending on who was responsible for the court claim in the fist place.
4) Clearly the plaintiff was the successful party. However, in some circumstances costs in estate litigation are handled differently and this was generally described by Dardi J. in Massam Estate (Re),  B.C.J. No. 1607, 2015 BCSC 1306, where she said at para. 49:
The costs analysis in certain types of estate litigation is informed by specific principles unique to estate litigation: Mawdsley v. Meshen, 2011 BCSC 923. For example, if the litigation was brought about or sprung from the will-maker’s own conduct — such as ambiguous wording in the will requiring an application to construe the will — the general judicial approach has been that all parties should be awarded their costs out of the estate: Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.); Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76 (C.A.). Otherwise, the usual rule is that costs follow the event, so that the successful litigant is entitled to recover costs from the unsuccessful opposing party. The court, however, retains the discretion to order otherwise if the circumstances warrant it. Any discretionary exceptions to the usual costs rules must be made judicially: Bailey v. Victory (1995), 4 B.C.L.R. (3d) 389 (C.A.) at 393.
The leading case on the usual approach to costs in estate litigation is the Court of Appeal’s decision in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76. Hinds J.A. referred to the decision of Master Horn in Lee v. Lee Estate (1993), 50 E.T.R. 297 at pp. 301-302 for the proposition that “where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate”. However, quoting further from Master Horn he referred to litigation such as the case at bar where the issue was not the validity of the will or the testator’s capacity but the provisions directed to the support and maintenance of dependants and said in part:
But the case is different where the litigation does not relate to the validity of the will or the capacity of the testator or the construction of the will. Actions brought under dependants’ relief legislation presume the validity of the will and the capacity of the testator and that his intentions are clear. There are not doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependants of the testator and are based on public policy. The legislation does not invalidate the will, it merely permits the court to vary the provisions made by the testator. So an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to have been necessary to enable the estate to be distributed. The action does not benefit the estate.
Hinds J.A. continued at para. 45:
Here there was no question of the validity of the will, the testamentary capacity of the Testator, or of the meaning of the will. The Testator was not at fault in some way, thereby contributing to the appellant making an unsuccessful claim against his estate. In my view the general rule must prevail; costs should follow the event. …
There is no reason, exercising my discretion judicially, to make an order different from that sought by the plaintiff’s counsel. The plaintiff was successful. I was not shown any offers to settle by either party that showed the result was better than a result they were prepared to settle
Werner v. McLean 2016 BCSC 1510 granted relief under S 151 WESA that the applicant be authorized to bring court action in the name of and sue on behalf of the personal representative of the estate as executor.
The court approval was in order to litigate whether an asset was or was not an estate asset. The court found that the applicant had satisfied the required criteria under S 151 WESA.
An application in the alternative that the executor be removed and the applicant substituted as executor was dismissed on the basis that the executor had not acted improperly.
The court stated:
 On an application for removal of a trustee, the court’s focus is on the welfare of the beneficiaries of the trust estate: Letterstedt v. Broers (1884), 9 App. Cas. 371 (P.C.); Conroy v. Stokes,  B.C.J. No. 111 (C.A.). Not every act of misconduct should result in removal. The question is whether the acts or omissions endanger the trust property or show a want of honesty or proper capacity to execute the duties or reasonable fidelity: Letterstedt, at 386.
Section 151 of the Wills, Estates and Succession Act provides, in relevant part, as follows: (1) Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person (a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or (b) to obtain damages for breach of a right, duty or obligation owed to the deceased person. … (3) The court may grant leave under this section if (a) the court determines the beneficiary or intestate successor seeking leave (i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding, (ii) has given notice of the application for leave to (A) the personal representative, (B) any other beneficiaries or intestate successors, and (C) any additional person the court directs that notice is to be given, and (iii) is acting in good faith, and (b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended. (4) On application by a beneficiary, an intestate successor or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.
Willott v. Willott Estate 1997 CarswellBC 2016,  B.C.J. No. 2073, 20 E.T.R. (2d) 211 is a 1997 wills variation action where a deceased parent’s estate was required to pay additional monies to a disabled son who unable to work, survived on a small disability pension due to his mental illness.
The estate was approximately $500,000 and was left solely to the sister of the deceased.
The disabled son succeeded in his wills variation claim ( now section 60, WESA) with the court finding that state paid disability benefits are the bare minimum and that a parent still has a moral obligation to provide more for the child’s benefit.
THE COURT STATED:
73 Therefore, I find that a judicious testatrix, as part of her consideration of what is adequate support for an adult child who is incapable of supporting himself due to disabilities, may take into account the provisions made by the state for that person. That is the starting point. The state provides for basic needs. But the state also is willing to provide for those needs without deduction while allowing for some “extras” for the disabled person. Thus arise the exemptions in the Disability Benefits Program Act and the Regulations to that Act.
74 I find on the whole of the evidence that Iris Willott did not make adequate provision for the proper maintenance and support of her son, and did not discharge her moral obligation to him. Lot 1 will provide accommodation for him should he chose to live there or, if he chooses to sell that property, I find it will provide him with enough money to purchase other suitable accommodation. His benefits under the regulations to Disability Benefits Program Act will cover his house insurance, taxes, fuel, water, hydro, garbage and basic telephone expenses (s. 5 Schedule A). In addition, benefits will provide him and his wife with medical and dental coverage, eye care, prescriptions and home support. But the monthly amount of $608 which he will then receive (assuming he and his wife are together) is not sufficient, I find, to maintain him to the standard which was reasonable given his own circumstances at the time of his mother’s death and the other factors the court is required to consider when dealing with Wills Variation Act actions, including the size of the estate.
75 I find that Mr. Willott should be provided with a further lump sum which (together with the remainder of the cash bequest which he received under the will) will enable him to purchase a reasonably reliable vehicle and certain household items which he requires. Many needs for the later will be satisfied by his receipt of the balance of Iris Willott’s effects which all the defendants agree he should have. I find the additional amount that Mr. Willott should receive is $20,000. If Mr. Willott, with the assistance of his wife and others, plans efficiently, this sum should also suffice to cover his initial vehicle insurance costs as well as living and other transitional expenses which he will incur over the one to three months which I estimate will be the time during which he will not receive benefits due to receipt of funds from the estate. Should Mr. Willott choose to sell the property he can and should plan the sale and any purchase of other property to minimize the time during which he will not receive benefits.
76 In addition, Mr. Willott should have the benefit of a trust as contemplated by the Disability Benefits Program Act and Regulations. This trust shall be in the amount of $100,000. Mr. Willott shall receive the income from this trust to the maximum allowed under the regulations. The balance of the annual trust income, after payments of all costs related to the administration of the trust, shall be paid to the Society, from whose share of the estate the trust shall be created. Upon Mr. Willott’s death the capital of the trust shall revert to the Society. At present this means Mr. Willott will receive from the trust a maximum of $5,484 per year or $457 per month in addition to the $608 in monthly benefits which he receives. If necessary, counsel may speak to the question of the appointment of an appropriate trustee.
77 The trust shall be created from funds from the sale of Lot 102 which shall be listed for sale forthwith. Mr. Willott may call for the transfer of Lot 1 and the balance of the funds owing directly to him at any time from the date of this judgment but not later than three months after the establishment of the trust. Until that time, he shall be entitled to interest on the funds owing directly to him in the amount of 5% per year payable at the time he receives the funds. Should Mr. Willott chose to defer the transfer of Lot 1 he will not be entitled to any accounting with respect to the income from it, nor shall he be responsible for any of the expenses relating to it.
78 The additional lump sum payment shall fall rateably on the estate. Mr. Onwood’s share of the estate shall be satisfied next after that of Mr. Willott. Thereafter the congregation’s share of the estate shall be satisfied, following which the Society shall receive its share.
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 case at trial can have devastating effects on both the client and the lawyer. This is especially true for the lawyer handling such a case on a contingency fee basis. An undue influence trial usually requires many days of examinations for discovery. Such a trial often takes a minimum of two weeks. Disbursements can be substantial including fees for medical expert witnesses and private investigators..
Such influence is most often exerted in private aware from other friends, family members of potential beneficiaries. There are rarely eyewitnesses who observe blatant undue influence being exerted. It sometimes seems therefore, the only way to prove such a case is with a written confession from the person who exerted the influence.
It is a real challenge for counsel to successfully convince the court to set aside the will or inter vivos gift, on the basis of undue influence.
In this paper I will examine briefly the case law surrounding undue influence and then set out twenty practice tips that will hopefully assist a plaintiff’s counsel in winning his or her undue influence trial.
What is Undue Influence?
Undue influence is an equitable doctrine. It is a category of constructive fraud. A very fine line separates legitimate influence from undue influence. These cases are understandably very much fact driven. Success in such cases usually requires a meticulous examination of the facts, particularly those that appear suspicious.
The following oft cited passage sets out the test for undue influence at law:
A-It is settled law that undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence – or persuasion – on a testator. It is also clear that the possibility of its existence is not excluded by a finding of knowledge and approval. To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by [strong relationships] to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. (Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at page 82.)
This passage is cited with approval in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184. The authors continue as follows;
A-Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say Athis is not my wish but I must do it.
2 Kinds of Undue Influence: Actual and Presumed
1) Actual: In cases of actual undue influence, the recipient must be shown to have coerced the transferor to make will or inter vivos gift. The conduct must be such that the court finds that the transfer or disposition was not the true will or free intention of the victim. Proof may be shown indirectly by circumstantial evidence, and sometimes by direct evidence such as threats, lies, and promises that the recipient had no intention to keep.
2) Presumed: Here a relationship of trust and confidence between the transferor and transferee raises a rebuttable presumption that the transfer was made by undue influence. Once the relationship of trust and confidence is shown, the onus of proof shifts to the transferee to prove that the transferor made the transferor after full, free, and informed thought. The policy of preserving public confidence in relationships of trust and confidence allows otherwise valid transfers to be voided. Generally speaking, the courts will be more inclined to interfere to set aside a substantial gift or transfer, as opposed to gifts of a minor nature.
Any presumption of undue influence is rebuttable by showing that the transfer was made after full, free and informed thought. This is often done by showing that the transfer or obtained proper independent advice.
N.B. This doctrine of presumed undue influence does not apply to testamentary dispositions
Differing Burdens Of Proof– Wills versus Inter vivos Gifts or Transfers
A key point is the distinction made between gifts or transfers inter vivos as opposed to those made by will. As noted above, in the case of special “trust” relationships where a transfer is made during life, a presumption of undue influence will arise. Where the gift or transfer is made by will however, no such presumption arises and the plaintiff has the daunting task of proving actual undue influence.
Justice Sigurdson initially deals with the issue of onus of proof. He states:
A-The onus for proving undue influence for inter vivos gifts differs depending on the nature of the relationship between the parties. In the absence of a fiduciary or special relationship, the onus rests on the party alleging undue influence to prove it. However undue influence is presumed to apply to certain relationships or in certain circumstances and the onus shifts to the recipient of the gift to rebut it.
The Judge continues as follows:
Feeney in The Canadian Law of Wills, 3rd ed., Vol. 1 (Vancouver: Butterworths, 1987) draws a distinction between the burden of proof when alleging undue influence in the making of a will and in the case of an inter vivos gift made to a person in a special relationship, at page 42:
In the case of gifts inter vivos to persons standing in a fiduciary relationship, or some other relationship whereby the donee was in a position to overbear the donor, such persons must show that they did not influence the donor in making the gift. There is, so to speak, a presumption of undue influence. There is no such presumption in the case of wills. A person in a position to overbear a testator may exercise persuasion to obtain a will or legacy in his favour and it will stand in the absence of positive proof of undue influence by those who assert it.
Undue Influence in Gifts or Transfers
Lord Justice Cotton in Allcard v. Skinner (1887), 36 Ch. D. 145 (Eng. C.A.), at 171 spoke of undue influence in connection with two classes of voluntary gifts:
“First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for that purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will.”
At page 181 Lord Justice Lindley said:
“The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.
This remains an accurate statement of the law, although the courts have taken a more flexible approach to the second class of case and it is not always necessary to show that the donor had independent advice in order to rebut the presumption of undue influence.”
In Goodman Estate v. Geffen (1991), 81 D.L.R. (4th) 211 (S.C.C.) at 221 Wilson J. asked:
What are the factors that go to establishing a presumption of undue influence? This question has been the focus of much debate in recent years. Equity has recognized that transactions between persons standing in certain relationships with one another will be presumed to be relationships of influence until the contrary is shown.
She noted that these included the relationship between trustee and beneficiary, doctor and patient, solicitor and client, parent and child, guardian and ward and future husband and fiance.
Wilson J. in Geffen then said at pages 221 and 227:
“Beginning, however, with Zamet v. Hyman,  3 All E.R. 933, it came to be accepted that the relationships in which undue influence will be presumed are not confined to fixed categories and that each case must be considered on its own facts. Since then it has been generally agreed that the existence of some Aspecial@ relationship must be shown in order to support the presumption although what constitutes such a Aspecial@ relationship is a matter of some doubt.
It seems to me rather that when one speaks of Ainfluence@ one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. … To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.
What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself.”
In Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (B.C. C.A.) at 295, the Court of Appeal, in the context of discussing the various judgments in Geffen, stated that:
The task to be undertaken by the court is to determine whether there existed in the relationship between donor and donee the potential for influence.@ In that case, the trial judge had stated the following at para. 41 of her reasons (reported at (1996), 26 B.C.L.R. (3d) 262 (B.C. S.C.):
A-In my opinion, the case before me is a classic case of the second category of undue influence, not the first. I agree that the Plaintiffs fall short of proving any unfair or improper conduct on the part of the Defendants. The rule of evidence applicable to the doctrine of undue influence doesn’t require the Plaintiffs to do so. They only have to show the Aspecial relationship of influence@ between the Grahams and Hugh Ogilvie in the sense that they managed his affairs or gave him advice and, therefore, had a duty to ensure he received independent advice before making substantial gifts in their favour. Then the burden shifts to the Grahams to show that Hugh Ogilvie had independent advice, or was free of their influence when making the subject gifts.
The Court of Appeal in Ogilvie, supra, concluded that the trial judge undertook the correct scrutiny of the relationship between the donor and the donee and the questioned transactions, and upheld her decision that a special relationship existed and that the presumption of undue influence had not been rebutted by the defendants.
Undue Influence in Wills
The decision of Scott vs Cousins 37 E.T.R. (2d) 113 summarizes the leading Canadian case on undue influence re wills, namely Vout v. Hay (1995), 7 E.T.R. (2d) 209 (S.C.C.)
A-The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:
1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
2. A person opposing probate has the legal burden of proving undue influence.
3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption.
Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (at page 227)
5. This presumption simply casts an evidential burden on those attacking the will
6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, Evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder
7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.
8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will:
It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will. (ibid.)
Suspicious circumstances or are simply circumstances that arouse the suspicion of the court. In the leading case, Barry v. Butlin (1838) 2 Moo. P.C. 480, it was held that the court ought not to pronounce in favor of the will unless the suspicion is removed. That role has been extended to include all cases in which a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator. ( Clark v. Nash (1989) 34 E.T.R. 174 (B.C.C.A.)
Undue influence can be established on the balance of probabilities through circumstantial evidence. In Scott v. Cousins, 37 E.T.R. (2d) 113, the Court describes circumstantial evidence that may be considered in undue influence cases:
In determining whether undue influence has been established by circumstantial evidence, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. … The testatrix does not have to be threatened or terrorized: effective domination of her will by that of another is sufficient. … This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. Other matters that have been regarded as relevant, within limits, are the absence of moral claims of the beneficiaries under the will or of other reasons why the deceased should have chosen to benefit them. The fact that the will departs radically from the dispositive pattern of previous wills has also been regarded as having some probative force.
Examples of suspicious circumstances may include:
1) an elderly testator;
2) a testator who is unwilling to provide the solicitor with full information relating to the assets, liabilities, medical history, or family condition and circumstances;
3) a testator who has suffered significant ill health, particularly if the condition, disease, or medication could affect the mental stability or general mental outlook of the testator;
4) a disposition of the estate which seems unusual in the context of the circumstances as known to the testator.
5) a beneficiary who has been particularly involved in “assisting” the testator in the preparation of the will;
6) dispositions in the will drastically different from the terms of the former will;
7) circumstances where the testator appears dependent upon another, for example allowing the other person to speak on his or her behalf;
8) a testator with questionable testamentary capacity;
9) a testator who has had numerous wills prepared in a short period of time;
10) a testator who has recently contracted a hasty or unwise marriage; 11) a testator with a language, learning , intellectual or cultural disability;
12) a testator who has recently changed living circumstances, particularly one who moves in with the alleged perpetrator;
13) a will that makes no gifts to those seemingly appropriate;
14) a will prepared on instructions provided by the questionable beneficiary.
15) cases where the long lost beneficiary seems to arrive “out of the nowhere”
16) a testator suffering from depression/loneliness.
The existence of any one or more of these factors does not necessarily mean that the will is vulnerable to attack. However the presence of any one or more of these factors is probably the best avenue for plaintiff=s counsel to attack the will. Successful counsel will be vigilant as to these and other suspicious circumstances.
Practice tips on how to win an undue influence case
1) Before undertaking such a case, particularly on a contingency fee basis, counsel should consider being retained initially only to gather facts. This will assist both client and counsel in determining whether there is a good likelihood of success.
This may not be required if probable lack of testamentary capacity is apparent from the outset. The obvious difficulty with most undue influence cases is the absence of witnesses. Most often there are only two people involved. One is now dead and the other is not talking. Accordingly there are usually immense problems in determining the facts upon which to allege undue influence.
I simply stress that counsel should be very selective in deciding whether or not to accept such cases. Certainly the size of the estate should be considered when making this decision.
2) File a probate caveat right away, but do not commence the court action until you have sufficient proof to justify your allegations of undue influence. The defense may quickly move for a summary trial. The court may award costs or higher costs against your client if you cannot prove the allegations.
3) Consider retaining an experienced private investigator to assist in determining the facts. Undue influence cases demand a meticulous examination of the facts. The private investigator should take signed statements from any witnesses who have material evidence. I consider it necessary to interview almost every person who knew the deceased at the relevant times. Try to obtain a background report on the defendant. It may be surprising how often there may be evidence of prior undue influence allegations. Interview the witnesses to the will or transfer.
4) Get as many records as possible concerning the deceased. This would include all medical records from every doctor and medical institution for at least 10 years prior to death, together with all long-term care records, social work records, nursing home records, care facilities, work or school records (if appropriate), and the like. It would also include the lawyer=s notes, and perhaps the lawyer=s notes of previous wills. The majority of undue influence cases involve senior citizens and there is often an issue of testamentary capacity. I stress however that undue influence can occur in non senior situations such as for example, a young person joining a cult.
5) Marshall the suspicious circumstances and present them in the form of a compelling argument to prove the case (usually through circumstantial evidence). Look to stress situations showing a pattern of the defendant making the deceased more dependant ( ie isolating and limiting access)
6) Try to determine the names and addresses of the witnesses that the alleged perpetrator relies upon, and try to interview them. I have found that if the defendant appears to be flaky, (which is often the case ),then the old adage often applies Abirds of a feather flock together@ often applies. Having this information will assist you in your cross examination.
7) Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. Usually perpetrators are unsophisticated in their methods. While undue influence is a form of civil fraud, the defendants are usually not particularly intelligent, skilled, or savvy.
8) Try to avoid a summary trial unless you have an overwhelming case. I have succeeded at trial, particularly through cross-examination, on cases which may well have been lost on a summary trial. On a summary trial the judge never has the opportunity to assess the credibility of the witnesses. As mentioned above, often these characters can be quite “flakey” and may contrast well with presentable and sympathetic plaintiffs.
9) In setting aside inter vivos gifts, take advantage of the presumption of undue influence where there is a special relationship situation. There often is a house keeping situation present.
10) Obtain expert opinion(s) from those such as geriatric psychiatrists(s) who never met the deceased. Have them review all of the records and tender an opinion on both testamentary capacity and the relative vulnerability of deceased to any undue influence.
11) Get on the case and take these steps as soon as possible. The family may come to see you prior to the death. Even where you cannot assist them to diminish any inappropriate influence, start to build your case as pro-actively as possible. This can involve everything from letters to doctors, banks and the Public Guardian, to obtaining an injunction or committeeship order.
12) Use demonstrative evidence such as home videos, photographs, handwriting samples and the like to try to demonstrate a “before and after” situation where there is evidence of medical or psychological decline.
13) Cross examine the handling lawyer or notary. Try and get an order to discover him or her for discovery. Even the most careful and senior lawyers may fall short in their duties. It can be highly effective to use the Law Society checklist to cross examine the lawyer. I refer you to Danchuk v. Calderwood 15 E.T.R.(2d) 193 where the Judge comments on the solicitors handling of the will:
In keeping with what I understand to be the law applicable to the duty of a solicitor, in the circumstances here, I accept the submission of counsel for the defendants that she failed with respect to that duty.
In my view, in the particular circumstances here, at the outset:
(A) she should have regarded the circumstances as suspicious having regard to the deceased’s advanced age and considerable seniority to that of the plaintiff as well as his apparent dependency upon her, including allowing her to speak for him;
(B) she should have undertaken an inquiry, including interviewing the plaintiff and the deceased separately with regard to the age difference and as to the independence of the deceased in giving instructions;
(C) the inquiry should have confirmed whether the deceased had a prior existing will and, if such a will existed, what were the reasons for any variations or changes there from prompting the disposition being put forward;
(D) the inquiry should have encompassed why and for what reasons the deceased had given a power of attorney to his daughter in late 1992 and, more importantly, why upon revocation of that power of attorney a new power of attorney was to be given by the deceased to the plaintiff; and,
(E) collateral to (D), supra, the inquiry should have included some investigation of the health of the deceased.
In this perspective, I understand the law to be that a solicitor does not discharge her duty in the particular circumstances here by simply taking down and giving expression to the words of the client with the inquiry being limited to asking the testator if he understands the words. Further, I understand it to be an error to suppose because a person says he understands a question put to him and gives a rational answer he is of sound mind and capable of making a will. Again, in this perspective, there must be consideration of all of the circumstances and, particularly, his state of memory.
If the solicitor had made such inquiry and had been made aware of the circumstances in a fuller sense, including the medical assessment of the ongoing progression and state of senile dementia, I am satisfied the said will would not have been prepared by her at that time.
14) Obtain medical opinions of treating physicians as to both testamentary capacity and whether the deceased may well have been more susceptible to undue influence given his or her medical condition.
15) Be bold and confident in the presentation of your case. The defense will always be skeptical and the court may be as well.
16) Be prepared to prove the relative inequality of the parties. The court should be made to understand any power differential. Age, infirmity and loneliness will likely render any person more vulnerable to inappropriate influences and this should be clearly demonstrated for the court.
17) Be prepared to prove the substantial unfairness of the will or bargain.
18) Prepare a chronology of relevant medical or factual events germane to your case.
19) Think hard and often as to how you will present your case.
20) Prepare and use a written opening at trial.
Undue influence case have always been difficult to prove for a variety of reasons, and probably will remain that way for some time yet into the future. I hope this paper’s outline of the law of undue influence, together with the twenty practice tips will bring success to plaintiff’s counsel in the future.
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 Variation claim is limited to common law or married spouses,and natural or adopted children, but no one else including step children, or if the child’s DNA does not match that of the deceased.
The Wills Variation criteria have been accumulated over almost 90 years of litigation and can be summed up from the two following cases, as to what the court wants to know in deciding a Wills Variation action:
In Clucas v. Clucas Estate, 25 E.T.R. (2d) 175,  B.C.J. No. 436 (S.C.). Satanove, J. at para  says as follows:
Examples of circumstances which bring forth a moralduty on the part of a testator to recognize in his Will the claims of adult children are:
1) a disability on the part of an adult child;
2) an assured expectation on the part of an adult child,
3) or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s life time;
4) the present financial circumstances of the child;
5) the probable future difficulties of the child;
6) the size of the estate and other legitimate claims.
These principles were expanded upon in McBride v Voth, 2010 BCSC 443, in which Trevor Todd was winning plaintiff’s counsel.:
“A number of years ago, this Court identified circumstances that might support or negate a testator’s moral duty to recognize the claim of an adult child in the decision of Clucas v. Clucas Estate, 25 E.T.R. (2d) 175,  B.C.J. No. 436 (S.C.). I would supplement that helpful summary with the following overview of six of the considerations that inform the existence and the strength of a testator’s moral duty to independent children. Although many of these factors were developed before Tataryn, for the most part they maintain relevance for the post-Tataryn court.
1. Contribution and expectation
 Contributions by the claimant to the accumulation of a testator’s assets with little in exchange, or providing other types of contribution or care to a testator will generally serve to strengthen the moral obligation, other things being equal. The contribution may also found a legal claim in unjust enrichment or quantum meruit: Tataryn; Re Sleno 78 D.L.R. (3d) 155,  B.C.J. No. 140 (S.C.); Lee v. King Estate,  B.C.J. No. 893 (S.C.); Harris v. Harris,  B.C.J. No. 1417 (S.C.); Ryan v. Delahaye Estate, 2003 BCSC 1081 (CanLII), 2003 BCSC 1081, 2 E.T.R. (3d) 107 [Ryan]. Contributions made by a first spouse who predeceased the testator may support a moral obligation to the adult claimant children of that first marriage: Saugestad v. Saugestad, 2008 BCCA 38 (CanLII), 2008 BCCA 38, 77 B.C.L.R. (4th) 170; Waldman v. Blumes, 2009 BCSC 1012 (CanLII), 2009 BCSC 1012, 51 E.T.R. (3d) 253.
 A moral duty may arise where the testator’s conduct has created a bona fide expectation on the part of the plaintiff to receive a benefit which does not come about on death: Marsh v. Marsh Estate 19 E.T.R. (2d) 184,  B.C.J. No. 1286 (S.C.); More v. More Estate, 2002 BCSC 920 (CanLII), 2002 BCSC 920, 46 E.T.R. (2d) 96.
2. Misconduct/Poor character
 Section 6(b) of the Act empowers the court to refuse variation to a person whose character or conduct, in the opinion of the court, disentitles him or her to relief. Such misconduct is measured as at the date of death, not subsequently, and must be directed at the testator. Generally speaking, the conduct must be relatively severe in order to justify disinheritance: Gieni v. Richardson Estate,  B.C.J. No. 1227 (S.C.); Sammon v. Stabbler, 2000 BCSC 1048 (CanLII), 2000 BCSC 1048, 77 B.C.L.R. (3d) 283. A child who is a disappointment overall (Sawchuk v. MacKenzie Estate, 2000 BCCA 10 (CanLII), 2000 BCCA 10), is an “incompetent weakling” (Re Bailey Estate, reflex,  1 W.W.R. 99, 1971 CarswellBC 195 (S.C.)), or is unsuccessful in multiple business ventures and has a difficult time “fighting the battle of life” (Re Radcliffe, 2 B.C.L.R. 220,  B.C.J. No. 1036 (S.C.)) was not considered to be sufficiently defective.
 In the earlydevelopment of the caselaw,a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94 (CanLII), 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021 (CanLII), 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette];Tomlyn v. Kennedy, 2008 BCSC 331 (CanLII), 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53 (CanLII), 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855 (CanLII), 2005 BCSC 1855; Ryan.
4. Gifts and benefits made by the testator during lifetime
 Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will. This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like. On the same reasoning, if a testator has made pre-deathgifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified. See generally: Ryan; Higgins v. Wojciechowski Estate,  B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249 (CanLII), 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].
5. Unequal treatment of children
 That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim: ReLukie et al and Helgason et al., 72 D.L.R. (3d) 395,  B.C.J. No. 1393 (C.A.); Price. On the other hand, in Vielbig v. Waterland Estate1995 CanLII 2544 (BC CA), (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists. (para. 67). The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers. The proposition was recently revisited by the Court of Appeal in Doucette. In that case, the Court of Appeal appeared to have no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside the will via jointly held assets.
6. Testator’s reasons for disinheritance/Subordinate benefit
 The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. RoyEstate 1993 CanLII 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) [Bell]. In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son. Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter. The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will. Accordingly, variation of the will was refused. The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.
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 in or about 2006-2007 and disinherited.com lead the fight against this proposed restriction to the rights of disinherited adults to bring a claim under the wills variation act.
I am pleased to report that the act was substantially left in its entirety with only very minor changes such as a plaintiff must commence a court action under the act within 180 days of the grant of probate, rather than six months.
Here is the current statement of the new section 60 which is almost identical to the former section 2 of the wills variation act , except for the removal of the words “in its discretion ” ( the Courts), which really should have no substantial effect on the judicial interpretation of of section.
There are several in depth articles on the Wills Variation act, all dated November 13,2013 that the reader should visit for the details of the act.
Included is the written submission to the Attorney general back in late 2006
In a nutshell only spouses, both legal and common law, as well as natural and adopted children have the right to contest a will under the Wills Variation act, even if the step child was raised by the deceased, but not adopted.
SECTION 60 WESA
Maintenance from estate
60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order.that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.