Understanding Important Legal Changes To Undue Influence

When a person passes away, those who loved and cared for the deceased usually want to make sure that his or her final wishes are respected. Sadly, those final wishes are sometimes manipulated or overturned due to the undue influence of another party. Undue influence is a major cause of will challenges and can lead to plenty of sleepless and stressful nights for those worried about the validity of a will. Knowing that a loved one's true intentions may not have been respected because of another person's own self-interest is a difficult realization for many people to go through. However, following changes brought into law by the Wills, Estates and Succession Act (WESA), challenging the validity of a will on the basis of undue influence may now be easier for some individuals.

Defining undue influence

A will must reflect the true intentions of the person who made and signed it. If the contents of a will reflect not the will-maker's intentions but rather the intentions of another person or persons then that will may be challenged on the basis of undue influence.

Undue influence can arise in a number of different situations, but as the Courthouse Libraries BC points out, that are some "red flags" that may point to the existence of undue influence. For example, the mental or physical state of the will-maker when he or she made the will may indicate undue influence, such as if the will-maker suffered from mental health issues that made it difficult for him or her to understand the contents of a will. Likewise, if he or she was isolated and dependent on one person or if the will was made under unusual or suspicious circumstances, these red flags may point to undue influence. While not every red flag is a guarantee of undue influence, they may provide a starting point for verifying whether the deceased's will actually reflects his or her final wishes.

Shift in onus

With the major changes to wills and estate law brought about in recent years in British Columbia through the passage of WESA, it is important to understand that the way wills are challenged on the basis of undue influence have also changed. Before WESA came into force the onus was on the person challenging the validity of the will to prove that undue influence had taken place.

Now, under WESA, that onus has been reversed, as the Law Society of British Columbia points out. Today Section 52 of WESA requires the person who is suspected of having benefited from undue influence over the will-maker to prove that no such undue influence took place. This onus specifically applies to individuals who were in a position where they could make the will-maker feel dependent on or even dominated by them and who may have used that position to unduly influence the will-maker into writing all or part of the will that is being challenged.

Contacting a lawyer

Challenging a will is never easy and choosing to do so is often a painful and wrenching decision for many individuals. Upholding the final wishes of a deceased loved one, however, should be one's paramount concern. An experienced wills and estates lawyer can help individuals who believe that a deceased loved one's will may have been at least partially the result of undue influence. Such a lawyer can help clients make sense of the options available to them and may be able to help them contest the will in question.