Difference between revisions of "Making and Executing a Will (16:III)"

To challenge a will on the grounds of undue influence, the asserting party must show that the will does not represent the will-maker’s true intentions due to the coercion. If this can be shown, undue influence is presumed. The party that wishes to defend the will may rebut this presumption by showing that the will was a result of the testator’s own “full, free and informed thought”. See ''[https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc64/2010bcsc64.html?autocompleteStr=Stewart%20v%20Mclean%2C%202010%20BCSC%2064&autocompletePos=1 Stewart v Mclean]'', 2010 BCSC 64. Factors that can assist with rebutting the presumption includes proof that:  

Notwithstanding section 52 of ''WESA'', an individual challenging a will on the basis of undue influence should have sufficient evidence to establish actual undue influence – in challenging the validity of a will, it may be insufficient to simply point to a relationship where there was a potential for the testator’s domination or dependence, without more. An allegation of undue influence is a serious allegation which should not be made lightly. See ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1032/2018bcsc1032.html?autocompleteStr=Ali%20v%20Walter%20Estate%2C%202018%20BCSC%201032&autocompletePos=1 Ali v Walter Estate]'', 2018 BCSC 1032, ''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii69/1991canlii69.html?autocompleteStr=Geffen%20v%20Goodman%20Estate%2C%20%5B1991%5D%202%20SCR%20353&autocompletePos=1 Geffen v Goodman Estate]'', [1991] 2 SCR 353, ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc61/2017scc61.html Cowper-Smith v Morgan]'', 2016 BCCA 200.