Trevor Todd and Jackson Todd co wrote this article and have over 60 years combined experience in handling estate litigation matters including undue influence.

 

S.52 WESA:    The Presumption of Undue Influence in Wills

 by: Trevor Todd and Jackson Todd

 

INTRODUCTION

In estate litigation, one of the most difficult causes of action to win at trial is that of a plaintiff alleging undue influence. A review of the case law reveals that the majority of undue influence claims are dismissed at trial due to insufficient proof.  It should also be pointed out that these are only the ones that proceeded to judgement.

The cases are not only therefore risky to commence, but the case law also shows that should the allegations of undue-influence prove to be frivolous or even unproven, the plaintiff runs a significant risk of having special costs assessed against them. Such a loss at trial can be devastating to the client, both emotionally and financially, as well as to the involved lawyers.

This paper will discuss the current state of undue influence in estate law, now centered around section 52 of the Wills, Estates and Succession Act (“WESA”).

WHAT IS UNDUE INFLUENCE?

Undue influence can be understood as influence which overbears the will of the person influenced, to the extent that what he or she does is not his or her own act [Longmuir v. Holland, 2000 BCCA 538 at para. 71].

Virtually every estate litigation fact pattern involves an allegation of a degree of influence, or where one party is dependent on another, in which circumstances a questionable transaction either by will or inter vivos occurs.

It is highly difficult to win an undue influence case where the mental capacity of the will-maker is not at least questionable at the relevant time the will or gift was made. It is difficult enough to persuade the Court that someone has acted under the undue influence of another person when the party in question is mentally impaired, to say nothing if they were not.

While rare, it is not truly necessary to be mentally incompetent or compromised to be under the influence or control of another person’s direction, such as witnessed by the behaviour of individuals who join groups or cults, or fall victim to persuasion of third parties (such as romance scammers or identity frauds), often at great personal expense. Such cases, however, simply do not come along very often.

Should there not be other contributing factors, the mere fact of someone being in a position for potential influence might be established, but it can be swiftly rebutted, unless there are some more troubling circumstances, and or a direct connection to a benefit received by the person in the role.

One hypothetical would be someone who held a close relationship to the will-maker, such as someone who had regular contact, but the will-maker was fully independent and the person who benefitted played no role in the process.  Simply by virtue of being in a potential position for influence, ie, with access, viewed in a vacuum, would ultimately not be enough to succeed.

PRIOR TO WESA

Prior to the introduction of section 52 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), there were two differing burdens of proof: one for wills and one for inter vivos gifts. The Courts drew a distinction between gifts or transfers inter vivos, as opposed to those made by will, and only in the case of “special trust” relationships where the transfer of the asset was inter vivos, did a presumption of undue influence arise [see Geffen v. Goodman (1991) 81 DLR (4th) 211 (SCC)].

Geffen held that these types of special relationships existed between trustee and beneficiary, doctor and patient, solicitor and client, parent and child, and caregivers.

However, no such presumption arose with respect to a will, leaving the plaintiff with the daunting task of proving actual undue influence [Vout v. Hay (1995) 7 ETR (2d) 209 (SCC)].

The special costs consequences for not proving actual undue influence remained a powerful consideration and deterrent to claims.  Presumably, many questionable wills surely remained unchallenged.

S.52 WESA

WESA codified the law when it came to the presumption of undue influence.

S.52 WESA reads as follows:

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

(a) being in a position where the potential for dependence 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  dependence 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  dependence 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.

While the statutory provision is to the point, how it has been applied in practice, has not translated to being quite as powerful as the statute sounds.  In theory, the reverse onus of proof should be a powerful tool, but viewed in isolation, s.52 WESA is typically not enough in and of itself to succeed in impugning the will or an inter vivos act.

Presumption of Validity: WESA s.37

For a will to be valid and binding in British Columbia it must meet certain formal requirements in law. The formal requirements for making a valid BC will are now set out in section 37(1) of WESA. To be valid, a will in BC must be:

• in writing;
• signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time; and
• signed by 2 or more of the witnesses in the presence of the will-maker.

Subsection 37(2)(a) of WESA provides that a will that does not comply with section 37(1) is invalid, unless the court orders it to be effective as a will under section 58, which is known as a “curative provision” that allows the court to cure deficiencies in certain circumstances, and is a whole other topic.

Where a will satisfies the statutory formalities set out in section 37(1) of WESA and was duly executed after having been read over by or to the will-maker who appeared to understand it, a presumption of testamentary capacity arises (Devore-Thompson v. Poulain, 2017 BCSC 1289 at para. 57, citing Vout at para. 26.)

This is the presumption that is reversed by s.52 WESA.

REVERSE ONUS OF THE PRESUMPTION

In theory, the reverse onus of proof should make it easier for a disputant to contest a will where a beneficiary was in a position of power or trust over the deceased will-maker or transferor.

1. 52 is a positive, because the disputant or plaintiff should not have to prove that actual influence, coercion or manipulation occurred. Proving the existence of a relationship of dependence (e.g., a vulnerable will-maker relying on a caregiver for physical needs) or domination (e.g., a controlling beneficiary managing the will-maker’s finances) should be sufficient to trigger the presumption of undue influence.

Once the challenger establishes the potential for dependence or domination, the legal burden of proof should shift to the party seeking to defend the will (the beneficiary/alleged influencer) to prove that undue influence was not exercised. Then the propounder and/or beneficiary must satisfy the court, on a balance of probabilities that the will was the result of the will-maker’s own “full, free, and informed thought.”

To successfully rebut the presumption, the defending party propounding the will or defending the inter vivos act, must provide evidence demonstrating factors such as:

• the will-maker’s capacity and intentions;
• that the will-maker received independent legal advice or had the opportunity to do so;
• that the will-maker was not isolated and knew and appreciated the consequences of the will’s terms;
• the will-maker possessed the ability to resist any influence; and
• that the terms of the will were consistent with the will-maker’s previous intentions, or if they changed, there was a rational, documented reason for the change.

All of the above is perhaps what was intended when S.52 WESA was introduced, but generally speaking that is not how the courts have treated it.

It is clear that unless there is accompanying evidence pertaining to capacity or suspicious circumstances, the presumption will typically not be given much weight in the Court’s decision making.

CASELAW

1. Elder Estate v Bradshaw, 2015 BCSC 1266

In this case an 80-year-old reclusive and cognitively declining will-maker left his entire estate to his (26 year younger) housekeeper, who gradually became his caregiver. The will was challenged by the will-maker’s nephews, who held a distant relationship with him.

Several witnesses testified that their relationship was not suspicious in any manner, and the evidence supported the caregiver’s position that she was his main source of emotional and physical support for many years, and that he stated that he did not know what he would do without her.

In such circumstances the Court saw no reason to resort to the provisions of s.52 WESA, as there was no evidence of undue influence.

2. Stevens v Esak, 2015 BCSC 331

This case involved an only son and the surviving common law spouse regarding the validity of will and a transfer of property.

The Court found that the will was valid, but set aside the transfer, as it was signed by the deceased on the same day that his doctor had found him no longer capable to manage his own affairs and was confused.

With respect to s. 52 WESA, the Court stated that undue influence can also arise in inter vivos transfers, and that a presumption that it has occurred will arise when the nature of the relationship between the donor and the recipient shows the potential for domination. To rebut it the recipient must show that the donor entered into the transaction of their own full, free and informed thought.

The Court stated that if the circumstances that would impose the statutory onus of s.52 WESA are not established, the party opposing the will may still prove actual undue influence. This requires proof of influence amounted to coercion, resulting in a will that not reflect the deceased true intentions and was not their own act.

The Court found that the situation fell within the description of s.52 WESA and that the onus was on the defendant to show that she had not exerted undue influence in the making of the deceased will. There was no dispute that she was his death-bed caregiver and that he was completely depended on her for meeting of all his needs, except those that fell to medical care providers

As such, the Court found that the transfer was the product of undue influence and that it must be set aside on that basis.

3. Richter v Richter, 2018 BCCA 238

The Court of Appeal reversed the (then) Master’s concerns about the weakness of the plaintiff’s case, as some of it went no further than mere allegations. The plaintiff had no firsthand knowledge of the events leading up to the making of the impugned will, but that was not surprising giving the nature of the issues.

The Court of Appeal stated that undue influence may be established through circumstantial evidence, some of which included the deceased’s advanced stage in declining health, her dependence on her son and daughter at relevant times, and their advanced knowledge of the impugned a will. The Court of Appeal found that the materials before the Master were sufficient to establish a triable issue and allowed the appeal, converting the petition into an action so that the matter might proceed to trial.

 

4. Ali v. Walters Estate, 2018 BCSC 1032

In Ali v. Walters Estate, the Holmes J. similarly found that she did not need to address the presumption of undue influence, as ample evidence existed that the will-maker was not under the undue influence of his common-law spouse (of 6 months), who his family knew little about. The Court found that any allegations of undue influence were merely conjecture.

At paragraph 68, Holmes J. addressed the component of influence, finding:

[68]  In all the circumstances, the evidence makes clear that Mr. Walters wanted to make the gift to Ms. Ali allowing her to remain in the condo after his death. While Ms. Ali may have tacitly encouraged him to make this gift, if she did so her actions came nowhere close to coercion.

 

The will-maker had no children and was found to be strong willed and independent, and only physically unwell.

1. Trudeau v. Turpin Estate, 2019 BCSC 150

In Trudeau v Turpin Estate, the Justice reviewed s.52 WESA and essentially disregarded the presumption of undue influence by finding the evidence was clear that there was no potential for domination by the defendant over the deceased.

The Justice explained at paragraphs 121-122:

[121]     I reject as absurd plaintiff counsel’s submissions that Dorothy’s continuous presence at the Property, her provision of assistance and care to Isabel, her statement to Isabel in the lawyer’s office in April 2005 that she should simply provide for an equal distribution, and her suggestion that Isabel change doctors after her previous doctor had misdiagnosed her bladder condition equates to or resulted in Dorothy having influenced Isabel’s testamentary decision-making in 2015.

[122]     I have no hesitation in finding that the 2015 Will was the result of Isabel’s own full, free, and voluntary thought, without influence by Dorothy or anyone else.  I find that Isabel well knew what she was doing when she executed the 2015 Will.

In coming to that conclusion, the Justice helpfully summarized and discussed the applicable case-law as follows:

[110]    Undue influence can arise where the relations between the donor  and donee at the time of or shortly before the execution of a will have  been such as to raise a presumption that the donee had influence over the  donor: Al!card v. Skinner (1887), 36 Ch.D. 145 (C.A.) at 171; Modonese at  para. 97. A gratuitous transfer from a parent to an adult child creates the  presumption of undue influence by the adult child: Geffen v. Goodman  Estate, [1991] 2 S.C.R. 353 at 378.

[111]    In this context, undue influence does not depend on proof of reprehensible conduct—indeed, the donee may have acted sincerely and honestly. However, equity will intervene as a matter of public policy to prevent influence existing from certain relationships from being abused:  Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (C.A.) at para. 14, citing Al’card at 171; Modonese at para. 99.

[113] Accordingly, once a relationship with the potential for domination has been established, the next phase of the inquiry is to examine the nature of the transaction. Where a gratuitous transfer is concerned, the onus moves to the defendant to rebut the presumption on the balance of probabilities: Stone v. Campbell, 2008 BCSC 1518 at paras. 43-44.

[114] In Stewart v. McLean, 2010 BCSC 64, Mr. Justice Punnett summarized the legal approach to the question of whether the presumption of undue influence has been rebutted at para. 97:

[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”: Geffen at 379. A defendant could establish this  by showing:

1. no actual influence was used in the particular transaction or the lack of opportunity to influence the donor (Geffen at 379; Longmuir at para. 121);
2. the donor had independent advice or the opportunity to obtain independent advice (Geffen at 379; Longmuir at para. 121);
3. the donor had the ability to resist any such influence (Calbick v. Wame, 2009 BCSC 1222 at para. 64);
4. the donor knew and appreciated what she was doing (Vout v. Hay, [1995] 2 S.C.R. 876 at para. 29, 125 D.L.R. (0) 431); or
5. undue delay in prosecuting the claim, acquiescence or confirmation by the deceased (Longmuir at para. 76). Another relevant factor may be the magnitude of the benefit or disadvantage (Geffen at 379; Longmuir at para. 121).

[115] These statements of the law were recently confirmed by our Court of Appeal in Cowper-Smith v. Morgan, 2016 BCCA 200 at paras. 49—53. 3.

This case shows that simply being in a position for potential influence can be strongly rebutted by rebuttal evidence if there are not other suspicious circumstances.

6. Huff Estate v Huff, 2021 BCSC 1400

Huff Estate was an application to convert a petition to an action based on allegations that the deceased’s will was procured in suspicious circumstances by the undue influence of a daughter who had moved in with the deceased, was present for meetings leading up to the signing of the will, arranged the appointment for the will’s signing, and drove him to the lawyer’s office.

The Court found that she was not bound to lose the decision, and it was necessary for the matter to proceed to trial to weigh and assess the credibility of the parties.

As stated in Robertson v. Dhillon, 20115 BCCA 469, if the defendant is bound to lose, the application should be granted, but if they are not bound to lose, then the application should be dismissed. This approach was followed in Kerfoot v Richter, 2018 BCCA 238, at paras 29 and 35, and the aforementioned Huff decision also followed the reasoning of the Kerfoot decision that undue influence may be established through circumstantial evidence.

In this case, the elements of one or all of the other surrounding circumstances was enough to meet the threshold of a triable action, which in essence, enough to establish the presumption under s.52 WESA.

6

Re Miles Estate, 2023 BCSC 873

Perhaps the most difficult case to rely upon regarding the presumption of S 52 undue influence is the Re Miles Estate decision, which basically stated that undue influence must be proven to show that the will was prepared as a result of the undue influence

In this matter the plaintiff’s claim to invalidate the last will of the deceased on the basis of undue influence and lack of mental capacity was dismissed. In dealing with section 52 of WESA, the Court confirmed that where an attacker of a will establishes the potential for dependence or domination of the will-maker, there is a rebuttable presumption that the will was executed under undue influence, and the onus is then on the proponent of the will to prove and undue influence was not exercised.

The Court stated that in order to rely in the presumption in section 52, the disputant must show not only that a person had the ability to unduly influence the will-maker, but that undue influence was in fact exercised, in that the will or relevant provision was the product of undue influence.

Suspicious circumstances of undue influence must be well-grounded, and presumptions regarding the validity of the will can only be rebutted by evidence of suspicious circumstances. The suspicious circumstances need to surround the preparation of the will, tend to call in to question the deceased testamentary capacity, or tend to show that the deceased free will was overborne by acts of coercion or fraud.

9. Re Ross Estate, 2024 BCSC 459

In Re Ross Estate, two wills prepared by the deceased in 1979 and 2019 respectively were both struck as being invalid, either because the will-maker lacked the necessary testamentary capacity due to intellectual disability, or because of undue influence exerted by the respondent, who was declared to not be his spouse.

The Court stated that if the circumstances that would impose the statutory onus of section 52 WESA are not established, the party opposing the will may still prove actual undue influence. This standard requires proof of influence amounted to coercion, resulting in a will that did not reflect the deceased true intentions and was not their own act.

The Court stated that even if the presumption of s 52 were not available, they would have not have any difficulty finding based on the evidence that the respondent was the only person interested in liberating the deceased’s funds from the Public Guardian and Trustee, or inferring that she took advantage of his mental incapacity.

In the Court’s comments it is hard to find value in the specific application of s.52, but it can be a further factor assisting the Court in making their decision.

10. Re Baylis Estate, 2025 BCSC 410

In Re Baylis Estate, a petition was converted to an action and referred the matter to the trial list, based on application materials that were sufficient to raise a triable issue on the issue of undue influence and testamentary capacity and whether the deceased fully understood and approved the contents of the will.

At paragraph 26, Weatherill J. stated:

[26] In short, before an application to prove a will in solemn form will be referred to the trial list, there must be a bona fide triable issue that cannot be determined by reference to affidavits and documents and would affect the outcome of the proceeding. A bona fide triable issue arises where, on the evidence, there is a dispute as to facts or law which raises a reasonable doubt or suggests there is an issue that deserves to be tried. Factors to consider include the undesirability of unnecessary costs and delay, witness credibility assessments being required, the need for the Court to have a full grasp of all the evidence and whether the interest of justice requires a trial to resolve the dispute: Konkin v. Harris, 2022 BCSC 1067 at paras. 72-79; Saputo at paras. 44-45.

In determining whether an application of petition should be converted to an action, the question is whether the party requesting the trial is bound to lose.

s.52 WESA and the quality of the surrounding evidence can become arguable before the Court sooner rather than later one a summary basis once a Petition is commenced.

11. Re Wilson Estate, 2025 BCSC 457

Re Wilson Estate was an application to prove a will in solemn form, that was granted with the Court finding that the evidence overwhelmingly determined that the deceased was competent to make the subject will.  The Court further found that the respondents had failed to refer to any evidence to rebut the process by which the will was executed, beyond vaguely referring to the deceased’s hospitalization and that she was on pain medication.

With respect to s. 52 WESA, the Court stated that in order to invoke the presumption, the respondents must first prove that the petitioners were in a position of dependence and domination over the deceased. In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence which if accepted, would tend to negate knowledge and approval of testamentary capacity.

The Court cited Laszlo v Lawton, 2013 BCSC 305 regarding the doctrine of suspicious circumstances and stated that such suspicions have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit that classification. Commonly occurring themes include were beneficiaries instrumental in the preparation of the will, especially where the beneficiary stands in a fiduciary position to the testator, or where the will favors someone who is not previously been the object of the testator’s bounty and does not fall within the class of persons tested is usually remember in their wills.

In Re Wilson, a hospitalization and belief that pain-medications may have been a factor was not enough to invoke s.52 WESA without further specific concerns.

12. Re Underhill Estate, 2025 BCSC 172243

In Re Underhill Estate, the will-maker was a senior Vancouver solicitor, and his wife of 30 years sought to prove his will in solemn form. The application was opposed by his two sons, who alleged their father lacked mental capacity and was subject to the undue influence of his wife.

The sons’ application to convert their petition to an action was refused by the court.

Dealing with s. 52 WESA, the Court stated that upon a plain reading, the provision reverses the burden of proof in circumstances where there is even the potential for dependence on someone who receives a gift under a will. It does not however change the requirement that undue influence at common-law must ultimately be established on the evidence.

The children were required to prove that suspicious circumstances existed at the time of the execution of the will that raised a specific and focused suspicion that the deceased did not know and approve of the contents of the will, that he lacked the requisite capacity when the will was executed it, and was not the product of his own free will.

At paragraph 154 the Court stated a spousal relationship is not inherently a relationship of dependence for the purposes of s. 52 WESA.

The Court referred to the Miles decision that the challenger of the will must show not only that the person had the potential to unduly exercise the will-maker, but that the undue influence was in fact exercised, and that the will was the product of that influence.

“SUSPICIOUS CIRCUMSTANCES”

It is clear that while s.52 WESA has expanded the situations in which the presumption may be flipped to the propounder, it is clear that to ultimately prove a will or transfer to be invalid, it is won or lost on the supporting evidence.

1. 52 WESA claims therefore must be accompanied by suspicious circumstance either around the willmaker/transferor’s capacity, the surrounding circumstances, or the will terms or inter vivos recipient.

The doctrine of suspicious circumstances will arise in circumstances that give rise to some suspicion.

The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the will-maker, but what constititutes suspicious is open-ended and fact specific. A quick, inexhaustive list of the innumerable circumstances which could be suspicious includes the following:

• advanced age or deteriorated health;
• a marked change in estate planning;
• where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
• where a gift is made to a person who is in a position to influence the testator, such as a caregiver or, the primary example, the party preparing the will;
• where an apparently unwarranted, undeserving or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
• where a gift is made to a beneficiary to whom the testator has had no close relationship, such as unconnected charity;
• where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
• where the will substantially deviates from previous wills;
• a new romantic partner or friend;
• where a gift is made to a person standing in a fiduciary relationship;
• where the beneficiary accompanies the testator on each trip to the will-drafter’s office during the process to complete the will;
• where the will-drafter receives the testator’s instructions from someone other than the testator;
• where the testator has had a recent serious illness or hospitalization;

where there is any question about the testator’s testamentary capacity

 

• where there are indications that the testator abuses alcohol or uses medications that are potentially mind-altering;
• where the testator has entered into a hasty or unwise marriage or common-law relationship;
• where there is evidence that the testator is depressed; or
• where there is a language/cultural disability or illiteracy.

The law relating to the intersection of testamentary capacity and suspicious circumstances was well canvassed in Laszlo v. Lawton, 2013 BCSC 305. The Court recognized that faltering mental capacity is prone to fluctuate and the authorities permit variation of the degree of capacity required at such pivotal times.

The well-established case of Banks v. Goodfellow, 1870 LR 5 Q.B. 549, remains the foundation of capacity assessment, and holds that in order to prove the will-maker had testamentary capacity, four criteria must be met:

1. The testator must understand that she is making a will and that a will disposes of property upon her death;
2. The testator must know the assets she disposes of; that is, she understands the nature and extent of her property;
3. The testator must understand and appreciate the claims to which she ought to give effect; that is, those who have an appropriate claim upon her bounty; and
4. The testator must be free of delusions that may affect her decision

A more modern formulation of the test is found in Re Schwartz, [1970] 2 OR 61 at 78 (CA), aff’d [1972] S.C.R. 150 where Laskin J.A. (dissenting on other grounds) summarized the elements of testamentary capacity:

… The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property. …

To lack testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence- it may change or fluctuate slightly or wildly so that at times a person may be of sound mind, while at other times may not be.

The Courts recognize that Alzheimer’s and dementia can impair a testator’s mental powers, such that he or she is not capable of making a will; however, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity.

A person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation, or who suffers from a chronic mental illness such as schizophrenia, may still have the capacity to make a valid will.

The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances. Testamentary capacity, however, is not a medical concept or diagnosis–it is a legal construct. Medical evidence, while important and relevant, is neither essential nor conclusive in determining the presence or absence of testamentary capacity.

Lay witnesses who have known the testator for many years can be very significant witnesses, and it is open to the court to accord greater weight to lay evidence than medical evidence, or to reject the medical evidence altogether.

It naturally follows that there is a connection from s.52 WESA to capacity, as ultimately, the disputant is suggesting that someone was vulnerable, incapable, or was unable to resist influence.

As a practical matter, the standard of proof is a balance of probabilities; however the case law makes clear that the evidence is to be scrutinized in accordance with the gravity of the suspicions raised [Vout v. Hay, [1995] 2 S.C.R. 876 at para. 27].

CASES WITH S.52 WESA, UNDUE INFLUENCE, AND VALIDITY OF WILL CLAIMS

Jung Estate v. Jung Estate, 2022 BCSC 1298, is instructive, as Blake J. held at paragraph 6 of her reasons that the order of determination of issues in a validity of wills case is as follows:

 

1. Are there suspicious circumstances surrounding the creation and execution of the will?

 

1. Did the will-maker have testamentary capacity at the time she made the will?

 

1. Did the will-maker know and approve of the contents of the will? and

 

1. Was the will-maker unduly influenced to make the will?

 

The interplay between the presumption of validity of a will and the doctrine of suspicious circumstances is summarized by Blake J. at paras 37 to 40 of her reasons in Jung Estate:

37      The parties agree that Jerry, in his capacity as the personal representative of the Will, has proven the formal validity of the Will in accordance with s. 37 of WESA. That is, that the Will is in writing, was signed at the end by the will-maker in the presence of two witnesses present at the same time, and was signed by those witnesses in the presence of the will-maker. When a will is executed in accordance with the statutory formalities after having been read by or to the testator, who appeared to understand it, the propounder is aided by a rebuttable presumption that the will-maker possessed the requisite knowledge and approval, and testamentary capacity: Vout v. Hay,[1995] 2 S.C.R. 876 at para. 26 [Vout ]; Laszlo v. Lawton, 2013 BCSC 305 at para. 202 [Laszlo ]. In such circumstances the testamentary capacity of Ms. Jung, and her knowledge and approval of the contents of the Will, are presumed.

 

38      However, if suspicious circumstances are shown to be present either in respect of Ms. Jung’s testamentary capacity or her knowledge and approval of the contents of the Will, then this evidentiary presumption is said to be spent, meaning it has no application. If so, the burden reverts to Jerry as the propounder of the Will to prove both testamentary capacity and knowledge and approval on a balance of probabilities, which necessarily entails dispelling the suspicious circumstances raised: Vout at para. 27; Laszlo at para. 204; Lantzius Estate, 2015 BCSC 935 at para. 64 [Lantzius Estate ]; Halliday at para. 32.

 

39      The standard of proof is a balance of probabilities; however the case law makes clear that the evidence is to be scrutinized in accordance with the gravity of the suspicions raised: Vout at para. 24; Lantzius Estate at para. 64; Laszlo at para. 205; Leung v. Chang, 2013 BCSC 976 at para. 31, aff’d 2014 BCCA 28, leave to appeal ref’d [2014] S.C.C.A. No. 261 (S.C.C.) (S.C.C.) [Leung]; Allart Estate v. Allart, 2014 BCSC 2211 at para. 33 [Allart Estate].

 

40      Suspicious circumstances must raise what has been described as a “specific and focused suspicion”; a “general miasma of suspicion that something unsavoury may have occurred” is not sufficient: Leung at para. 32; citing Clark v. Nash(1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.). Such suspicions must be “well grounded” and will generally relate to circumstances (1) surrounding the preparation and execution of the will, (2) calling into question the capacity of the will-maker, or (3) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25; Allart Estate at para. 32. There is no checklist of suspicious circumstances, but one commonly occurring theme is where a beneficiary is instrumental in the preparation of the will (especially where they stand in a fiduciary position to the testator): Laszlo at para. 207.

As stated in Moore v Drummond, 2012 BCSC 1702 by Smith J. at para. 40:

The “suspicious circumstances” must do more than create “a general miasma of suspicion”; they must create “a specific and focussed suspicion that the testator may not have known and approved of the contents of the will”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (BCCA).

In Jung, the Court found that a presumption of undue influence applied but undue influence was not found.  The Defendant had been instrumental in making the arrangements and providing information to the preparing lawyer, including his understanding of what the will-maker wanted, yet the Court found that the will-maker’s receipt of advice and the totality of evidence, on the balance, did not warrant a finding of undue influence.

The burden is on the contesters of a will to rebut the presumption of testamentary capacity by showing there were issues surrounding the creation of the will, such as fraud, undue influence, coercion, or suspicious circumstances, regarding the will-maker’s capacity or knowledge and approval: Singh Estate (Re), 2019 BCSC 272 at para. 89 (“Re Singh Estate”) at para. 61.

It can be seen at the trial level that unless the influence evidence is strong, the Court

will ultimately be considering the evidence alleging suspicions against the will or transfer and that in its support, and will be guided by the strong presumption of capacity and in effect, hesitant to take away a person’s (often final) autonomy.

HOW TO IDENTIFY UNDUE INFLUENCE: Solicitors

This section pertains primarily to elderly clients but is not limited to them.

Explore whether will-maker is in a relationship of dependency, domination or special confidence or trust. Some sample questions to consider asking the will-maker or transferor would be:

• Do you live alone? With family? A caregiver? A friend?
• Has anything changed in your living arrangements recently?
• Are you able to go wherever and whenever you wish?
• Does anyone help you more than others? Who arranged/suggested this meeting?
• Does anyone help you make decisions? Who does your banking?
• Has anyone asked you for money? A gift?
• Do you feel like you owe anyone something?

Carefully and respectfully explore whether will-maker is a victim of any form of abuse or neglect in other contexts. Some sample questions to consider might be:

• Has anyone ever hurt you? Has anyone taken anything that was yours without asking?
• Has anyone scolded or threatened you? Are you alone a lot?
• Has anyone ever failed to help you take care of yourself when you needed help?
• Are there people you like to see? Have you seen these people or done things recently with them? Conversely, are there people you don’t wish to see?
• Has anyone demanded money, estate planning, or transfer of your assets?
• Has anyone ever threatened to take you out of your home and put you in a care facility?

Obtain relevant information from third parties when possible and if the will-maker consents, such as:

• Medical assessments
• Committeeship proceedings
• Powers of Attorney
• Financial information
• Credit search
• Relationship dynamics

Obtain medical assessment if mental capacity is also in question, but remember that mental capacity to make a will is ultimately a legal test.

Compile a list of events or circumstances indicating undue influence, if detected. If there are concerns about undue influence you should not act, and should proceed appropriately to your circumstances.

If there is potential for the appearance of influence, this aspect should be noted, and there should be evidence in support of how the matter was considered and was not an issue in your determination.

As a practice note, when canvassing these sensitive matters there is clearly need to need to act with tact, discretion and awareness for the client’s well-being, on a case by case basis, and to refer to community resources if and when appropriate.

 

RED FLAGS TO WATCH FOR

 

The preceding section pertained to primarily preparing solicitors asking questions and receiving information from the client, but lawyers will of course need to make their own observations and judgements as well.

The following list is not complete or definitive, but is an aid to practitioners to identify potential undue influence so that they will be alerted to carry out the necessary inquiries before preparing a will or transfer for execution, or working backwards as litigators, what to look for.

(a)        Will-maker invests significant trust and confidence in a person who is a beneficiary or is connected to a beneficiary (e.g. lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor” or partner, etc.).

(b)        Isolation of will-maker resulting in dependence on another for physical, emotional, financial or other needs.

(c)        Physical, psychological and behavioral characteristics of will-maker.

Examples:

• Dependence on beneficiary for sight, hearing, mobility, speech, illness, illiteracy. They will typically be accompanied to the relevant appointments by said person.
• Signs of withdrawal, neglect/self-neglect (emaciation, inappropriate clothing, bruising, untreated injuries).
• If they are in state of shock after stressful situation or grieving

(d)       Non-specific factors, such as unusual behaviour or instructions, particularly if the latter is changing.

(e)        Cultural influences, conditioned responses, fear of family member or community.

(f)        Impaired mental function from a psychiatric condition or a non-psychiatric cause (e.g. trauma, stroke, substances)

Examples:

• Short term memory problems, disorientation, difficulty with finances.
• Signs of depression (e.g. irritable, agitated, difficulty making decisions, sad face, bowed head, general lethargy).
• Extreme sense of well-being, continuous speech, inability to concentrate, poor judgment.
• Apprehensive or appearance of being worried, distressed, overwhelmed.
• Inability to answer open-ended questions.

(g)        Circumstances related to making of the will and/or the terms.

Examples:

• Unusual gifts; sudden change for no apparent reason; frequent changes.
• Marked change in instructions from prior wills.
• 3rd party initiates instructions which also benefit 3rd party.
• Beneficiary speaks for will-maker, offers to pay for new will, or is otherwise asserting control.
• The will-maker relies on notes to give instructions.
• Spouses: joint retainer but one spouse provides instructions while other remains silent.
• Recent death of a family member and other family appear to influence changing existing will.
• Reconciliations

(h)        Characteristics of influencer in will-maker’s family or circle of acquaintance.

Examples:

• Overly helpful.
• Insists on being present during interview with practitioner and on calls.
• Contacts practitioner persistently after instructions are taken.
• Practitioner observes negative and/or controlling attitude to will-maker.
• Practitioner is aware that influencer is in difficult financial circumstances and/or engages in substance abuse.

(i)         Practitioner’s “gut feeling”.

Examples:

• Body language of will-maker indicates fear, anxiety, insecurity, embarrassment, etc.
• “Influencer” is difficult to deal with at appointment.
• “Influencer” is rude to staff in office or on telephone, or is overly solicitous.

The practitioner’s gut factor might be formed instantly or it may develop through the course of the intake and meetings, but the gut factor is all encompassing of the other ‘flags’, and you must trust it.

Some helpful considerations for both solicitors and litigators, regarding the further quality of advice when screening for influence is set out in Cowper-Smith v. Morgan, 2016 BCCA 200:

 

51      The following considerations have also been identified as relevant to the assessment of the legal advice provided to the donor (Fowler Estate v. Barnes (1996), 142 Nfld. & P.E.I.R. 223 (Nfld. T.D.), Green J., adopted in Coish v. Walsh, 2001 NFCA 41 (Nfld. C.A.) at para. 23):

 

1. Whether the party benefiting from the transaction is also present at the time the advice is given and/or at the time the documents are executed;
2. Whether, though technically acting for the grantor, the lawyer was engaged by and took instructions from the person alleged to be exercising the influence;
3. In a situation where the proposed transaction involves the transfer of all or substantially all of a person’s assets, whether the lawyer was aware of that fact and discussed the financial implications with the grantor;
4. Whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place; and
5. Whether the solicitor discussed other options whereby she could achieve her objective with less risk to her.

These are known as the “Coish” factors, and can be helpful considerations for preparing counsel anticipating issues, as well as litigators, assessing the quality of evidence within fact patterns.

Clearly, when faced with even the potential for accusations of potential influence, the drafting lawyer should turn their mind to such possibility and document in their file how they were satisfied in their assessments.

 

There would appear to have been many cases where s.52 WESA may have applied in the initial stages of claims, but were rebutted on the evidence along the way and did not make it to trial.  If and when the legal file is produced, the quality of the file can help these issues be determined earlier rather than later within the litigation, seemingly short of trial.

TIPS ON HOW TO WIN AN UNDUE INFLUENCE CASE

The starting point would be to in your view establish the potential basis for s.52 to apply as the lowest of threshold, but think ahead to the more demanding evidence that will be required with respect to surrounding suspicious circumstances, in order to ultimately prevail.

Before undertaking such a case, counsel should consider being retained on a limited basis to gather preliminary facts, which can assist 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, or conversely, it may be revealed that there is only a ‘general miasma’ of suspicion, ie, conjecture.

The obvious difficulty with most undue influence cases is the absence of witnesses. Most often there are only two people involved; one is now passed away and the other is not talking, or has clear self-interests. Accordingly, there are usually immense problems in determining the facts upon which to allege undue influence, and as such, counsel should be selective in deciding whether or not to accept such cases.

 

If there are no supporting facts or evidence, then counsel should not presume that costs would automatically be paid out of the estate to the involved parties, if the matter involved a will. A claim found to be brought with little or no evidence will be treated as such, even if you have s.52 WESA and its presumption as your starting point.

 

File a Notice to Dispute right away, but you do not need to commence the court action until you have sufficient proof to justify your allegations of undue influence. The respondent/defendants may quickly move for a summary trial, and as mentioned, the Court may award costs or higher costs against your client if you cannot prove the allegations.

Interview the witnesses to the will or transfer, if they are willing to without Court order.

Consider retaining an experienced private investigator to assist in determining the facts if necessary, but it is crucial to interview almost every person who knew the deceased at the relevant times, ie, those in their orbit.

 

Try to obtain information about the disputant – it is surprising how often there may be evidence of prior undue influence allegations by those now alleging it.

 

Get as many records as possible concerning the deceased. This would include all medical records from every doctor and medical institution for at least 7 years prior to death. It would also include the lawyer’s notes, and perhaps the lawyer’s notes of previous wills.

 

Marshall the suspicious circumstances and present them in the form of facts to prove the case (usually built through circumstantial evidence). Look to emphasize situations showing a pattern of the defendant making the deceased more dependent (i.e. isolating and limiting access, declining capacity, etc.)

 

Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. It can be the case that their receipt of the interest is done in a rushed and bullish manner.  It may have been done at an unusual place or time.

It can be the case of a ‘new to the scene’ influencing voice, which aids in establishing the suspicion, as does the ‘slow creep’ of one influencer to the exclusion of others who had an expectation or were previously beneficiaries.

 

Try to avoid a summary trial unless you have an overwhelming case. When seeking to establish the influence of the defendant, credibility assessment (or enough evidence) is a necessary component.

 

Obtain expert opinion(s) from those such as geriatric psychiatrists(s) who preferably have treated the deceased or, if not, then one 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, at the material time(s).

 

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, you can start to build your case as pro-actively as possible. This can involve everything from letters to doctors, banks and the Public Guardian and Trustee, to obtaining an injunction or committeeship materials.

 

It can be helpful to use demonstrative evidence such as home videos, photographs, handwriting samples, Facebook pages, diaries and the like to try to demonstrate a “before and after” situation where there is evidence of medical or psychological decline.  The right picture can be illustrative when it comes to either capacity or relationships/influence.

Cross-examine the handling lawyer or notary. Try to get an order to discover them, as 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.

 

Lastly, develop early on, work on throughout, and do not underestimate the power of a narrative. The evidence must come together to form a narrative in support of the result you seek to obtain.  This is particularly important for plaintiffs or defendant should the documents be limited or working against your client’s interest.

 

CONCLUSION

S. 52 WESA has helped to expand and clarify the law when it comes to establishing

the presumption of undue influence in wills and inter vivos transfers.  However, it is not a robust tool when it comes to proving the ultimate issues, which will always be determined on a case by case basis, and highly fact-specifically.

There can be cases wherein there are various competing presumptions in play, and while rare, s. 52 WESA could be a deciding factor for the Court.

For example, if there are competing presumptions for the validity and again against an intestacy, and the Court is separately considering the issue of suspicious circumstances, it is one more potential shift of the burden of proof for the Court to consider.

In application, S.52 WESA in our view has not provided the presumption that was desired.  In order to ultimately succeed at trial, there must be good evidence of suspicious circumstances and a connection of the accused to the benefit they received, and not just being in the position for potential influence.