Shifting the Burden of Proof
Where an allegation of undue influence is founded on a dominant relationship and the evidence establishes such a relationship, the burden shifts to the party in the dominant position to show that this position was not abused in bringing about the transaction, whether by gift or by will
Verwoord v Goss et al 2014 BCSC 2122 summarizes of the law relating to undue influence.
The facts are sadly familiar. The deceased did several wills in the last years of his life, and just prior to his death transferred his family home the joint tenancy with his daughter who had been estranged from the family for 30 years. He purchased another condominium which was also put in joint tenancy with the same daughter.
The other children brought an action to have the will declared invalid and the property transfers set aside, and the court agreed.
The court found that the deceased lacked mental capacity, and as well was under the undue influence of his daughter when he made the will, and did the transfers of land.
Expert witnesses concluded that the deceased was suffering from dementia.