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Difference between revisions of "Making and Executing a Will (16:III)"
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Making and Executing a Will (16:III) (view source)
Revision as of 23:46, 9 August 2021
, 23:46, 9 August 2021→d) Undue Influence
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In order 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: | In order 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: | ||
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; | ||
b) The will-maker obtained independent legal advice or had the opportunity to do so; | ::b) The will-maker obtained independent legal advice or had the opportunity to do so; | ||
c) The will-maker had the ability to resist the influence; or | ::c) The will-maker had the ability to resist the influence; or | ||
d) The will-maker had knowledge and appreciation about what they were doing. | ::d) The will-maker had knowledge and appreciation about what they were doing. | ||
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. | 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. | ||
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Allegations of undue influence should not be readily brought. A failed allegation of undue influence may attract severe monetary consequences against the accuser. When one alleges undue influence, they are accusing another of being a fraudster. A failed allegation of fraud more readily justifies an award of special costs against the accuser. Therefore, a party who fails to prove a case of undue influence runs the risk of having to pay the full legal costs of the defending party. As such, undue influence should be carefully considered and investigated prior to commencing a court action. See ''[https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc923/2011bcsc923.html?autocompleteStr=Mawdsley%20v%20Meshen%2C%202011%20BCSC%20923&autocompletePos=1 Mawdsley v Meshen]'', 2011 BCSC 923. | Allegations of undue influence should not be readily brought. A failed allegation of undue influence may attract severe monetary consequences against the accuser. When one alleges undue influence, they are accusing another of being a fraudster. A failed allegation of fraud more readily justifies an award of special costs against the accuser. Therefore, a party who fails to prove a case of undue influence runs the risk of having to pay the full legal costs of the defending party. As such, undue influence should be carefully considered and investigated prior to commencing a court action. See ''[https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc923/2011bcsc923.html?autocompleteStr=Mawdsley%20v%20Meshen%2C%202011%20BCSC%20923&autocompletePos=1 Mawdsley v Meshen]'', 2011 BCSC 923. | ||
The will drafter should ensure that the will represents the will-maker’s intentions and that they are not being coerced into making the will or disposition against their wishes. This is especially relevant where the aged or infirmed are concerned. | The will drafter should ensure that the will represents the will-maker’s intentions and that they are not being coerced into making the will or disposition against their wishes. This is especially relevant where the aged or infirmed are concerned. | ||
==== e) Suspicious Circumstances ==== | ==== e) Suspicious Circumstances ==== | ||
