Making and Executing a Will (16:III): Difference between revisions
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Making and Executing a Will (16:III) (view source)
Revision as of 21:45, 11 October 2022
, 11 October 2022→d) Undue Influence
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A will or a portion of it that is made as a result of undue influence is not valid. Undue influence is not mere persuasion but is physical or psychological '''coercion'''. There must be capacity to influence and the influence must have produced a will that does not represent the will-maker’s intent. Section 52 of WESA now provides that, if it is shown that the will-maker was in a position where the potential for domination or dependence was present, the burden shifts to the party seeking to defend the will to show that the will was not procured through undue influence. A spouse, parent, or child, etc. may put their claims before the will-maker for recognition. This does not constitute undue influence unless it amounts to coercion. If the will-maker continues to be capable of making decisions freely, the advice or persuasion does not amount to undue influence. See ''[https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc976/2013bcsc976.html?autocompleteStr=Leung%20v%20Chang%2C%202013%20BCSC%20976%20&autocompletePos=1 Leung v Chang]'', 2013 BCSC 976 for a framework for the burden of proof in litigation regarding contested wills. | A will or a portion of it that is made as a result of undue influence is not valid. Undue influence is not mere persuasion but is physical or psychological '''coercion'''. There must be capacity to influence and the influence must have produced a will that does not represent the will-maker’s intent. Section 52 of WESA now provides that, if it is shown that the will-maker was in a position where the potential for domination or dependence was present, the burden shifts to the party seeking to defend the will to show that the will was not procured through undue influence. A spouse, parent, or child, etc. may put their claims before the will-maker for recognition. This does not constitute undue influence unless it amounts to coercion. If the will-maker continues to be capable of making decisions freely, the advice or persuasion does not amount to undue influence. See ''[https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc976/2013bcsc976.html?autocompleteStr=Leung%20v%20Chang%2C%202013%20BCSC%20976%20&autocompletePos=1 Leung v Chang]'', 2013 BCSC 976 for a framework for the burden of proof in litigation regarding contested wills. | ||
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: | 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 at para 96. Factors that can assist with rebutting the presumption includes proof that: | ||
::a) No actual influence was used or there was a lack of opportunity to influence; | ::a) No actual influence was used or there was a lack of opportunity to influence; | ||
