Undue Influence,
Elder abuse is a problem that can be hard to detect and, in many cases, goes unreported. It often happens in the context of family or care relationships where the person being abused is unable or reluctant to report what is happening to them. One example of elder abuse is undue influence exerted over a person making a will. Undue influence occurs when a person pressures or influences a will-maker by fraud, threat or fear to sign a will that he or she does not agree with and does not reflect his or her true wishes.

Historically, undue influence has been a difficult claim to prove at trial. Usually, the only people who knew anything about the creation of the will were the will maker and the person who is accused of using undue influence. As a result, it was common for these claims to fail as a result of insufficient evidence at trial. Fortunately, new legislation called the Wills, Estates and Succession Act, (WESA),was introduced in 2014 which has changed how these cases are treated by the court. Under WESA, there is a presumption of undue influence where the person starting the lawsuit can show that the other party had some dominance over the will-maker, or that the will-maker was dependent on that person. Once this relationship has been established, the onus of proof shifts and the other party must prove that there was no undue influence present.

Common indications of undue influence often include some or all of the following:

wills with gifts that are out of character for the will-maker;
wills that are significantly different than previous wills and give large gifts to a person who exercises some control over the will-maker;
wills made by people who are in poor physical or mental health; and
wills that are made in secret from family and friends.
Often when there are allegations of undue influence, there are other grounds for contesting the will. For example, undue influence is commonly alleged in cases where the mental capacity of the will-maker is in question. Even if undue influence cannot be proven, a court may find that the will-maker was not able to understand their affairs sufficiently to make a will.

If you believe that a will was made as a result of undue influence, you should contact a lawyer to determine what remedies are available. As with most legal claims, there are time limits for starting a lawsuit and evidence may be more difficult to obtain over time, so you should investigate the claim as soon as possible.

If the will-maker is still alive, you may wish to contact the Public Guardian and Trustee to request that an investigation be started. Additionally, if you are making a new will and are concerned that it may be challenged on the basis of undue influence, you should discuss this concern with a lawyer to ensure that your estate is protected.

If you have any questions about undue influence, preparing a will or estate planning please do not hestitate to contact one of our Kamloops estate laywers.


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