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.
206 It is also my view that the 2009 Will and subsequent inter vivos gifts were made in circumstances which support a finding of undue influence by Dennis and Thea.
207 Following Ogilvie v. Ogilvie Estate,  B.C.J. No. 1506 (B.C. S.C.) (“Ogilvie“), aff’d  B.C.J. No. 722 (B.C. C.A.), the overarching question raised by an allegation of undue influence is whether a disposition can be properly construed as “that of one free to determine what should be done with [the] property” (para. 34).
208 Undue influence arises in two forms: a) where the disposition was the result of influence wielded for the purpose of bringing about that end, or b) where there is a relationship between the a party and the testator (or donee) in which the potential for influence existed: Ogilvie (para. 34), and Brydon (para. 232). Respecting the former, the burden lies with the party raising the allegation of undue influence on a balance of the probabilities, and requires proof that the testator or donor was “influenced by another person to such a degree that the testator was coerced into doing what that other person wanted, against the will of the testator,” as held in Brydon (para. 232).
209 On the other hand, where an allegation of undue influence is founded on a dominant relationship, and there is evidence establishing that such a relationship existed, the burden shifts to the party in the dominant position with respect to the testator (or donee) to show that this position was not abused in bringing about the transaction: Ogilvie (para. 39), and Brydon (paras. 231-232). In other words, that party must prove that the relationship with the testator or donor was not abused so as to bring about the disposition in question, as provided in Ogilvie (para. 35).
210 This shifted burden effectively amounts to a rebuttable presumption of undue influence (Ogilvie, para. 36). The presumption is properly raised where the disposition is of “sufficient magnitude,” and “the potential for domination inheres in the nature of the relationship itself,” such as “solicitor and client” and “guardian and ward” (para. 37). Ultimately, the question is whether the relationship is one which “provides an opportunity for one person to dominate the will of the other” (Brydon, para. 236).
211 Turning to the facts of this case, there is some evidence to suggest that Bart was influenced by the defendants, and particularly the pressure exerted by Dennis’ forceful personality, to make the 2009 Will and subsequent inter vivos dispositions. However, in my view, this is a case which is better determined under the dominant relationship branch of undue influence. That is so, because the 2009 Will and inter vivos gifts here at issue are of a considerable magnitude, and because the plaintiffs have satisfied me that Bart’s relationship with Dennis and Thea was one of dependency.
212 The evidence robustly supports that Bart’s relationship with Dennis and Thea following Anna’s death was one of dominance and dependency on Bart’s part. He was in a state of diminished mental capacity, and requested help with the arrangement of his affairs so as to avoid what he perceived as Caroline’s designs on his estate. As noted, this help was provided, and extended to Dennis managing Bart’s relationship with his lawyer, Lynda Cassels. Dennis became Bart’s Power of Attorney, and Thea his representative under the Representation Agreement. Further, given Dennis’ legal training, and the fact that Thea had taken on a role in supporting her father in his time of need, I am left with no doubt that a “special” or dominant relationship, as contemplated in Ogilvie and Brydon, existed between Bart, Dennis and Thea following his request for help in May, 2009. There can be no doubt that they “managed his affairs or gave him advice” (Ogilvie, para. 41).
213 The burden is accordingly moved to the defendants, who must prove that the 2009 Will and inter vivos gifts were the result of Bart’s own will, informed and exercised freely. The defendants may discharge their burden by showing that Bart acted pursuant to independent advice, or by establishing that no actual influence was deployed respecting the transactions at issue (Ogilvie, para. 39).
Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.