Undue Influence & Lack of Capacity Lawyers

Lawyers for Undue Influence & Lack of Capacity

Our estate litigation lawyers are adept at resolving issues of undue influence and lack of capacity.

In order to set aside a trust, will, gift or transfer of an asset, you can claim that these instruments were executed when the person lacked the necessary mental capacity to execute these instruments, or that the person was unduly influenced to execute a transfer.

These types of cases can be complex and difficult to prove, however, and may attract an award of special costs against you (if you fail to prove an undue influence claim). If you are concerned that undue influence or lack of capacity was a factor in your loved one’s estate plan, it is essential that you seek advice from an experienced estate lawyer.

At Onyx Law Group in Vancouver, our lawyers are adept at resolving issues of undue influence and lack of capacity. We have built a reputation throughout British Columbia for providing quality legal service and personal attention at every stage of the process. We are committed to resolving your dispute efficiently and helping you avoid lengthy litigation whenever possible.

Making an undue influence or lack of capacity claim

Any element of an estate plan can be challenged, including a will or trust. You may also be able to set aside a gift or transfer of an asset that was made before death. In order to do this, however, you must prove that the instrument or transfer is not valid. Undue influence and lack of capacity are two of the most common challenges to validity.

Undue influence involves situations where a person uses power over another person to his or her own benefit. For example, a caretaker may use threats or other abusive tactics to convince an elderly person to change his or her estate plan in the caretaker’s favour. In order to invalidate the instrument, however, you must be able to show that the individual under influence acted differently than he or she would have if the decision had been made independently.

Section 52 of the Wills Estates and Succession Act (the “WESA”) provides that there is a presumption of undue influence in favour of setting aside a Will when the claimant can prove there was a potential that the will-maker was in a relationship of dependence and dominance with the defendant in the case (i.e. the main beneficiary of the will). An example of such a relationship would be of caretaker and ward.

At common law, there is also a presumption of undue influence akin to the one provided for pursuant to s. 52 of the WESA regarding transfers of assets that happen before the will-maker’s death.

A will-maker must also have the mental capacity to execute a transfer or an instrument. In order to prove incapacity, you must be able to show that the individual did not 1) understand the nature and effect what he or she was signing, 2) know the size and composition of his or her estate (or the value of his or her estate), 3) identify who the will-maker should be providing for (i.e. know his/her legal and moral obligations to family members), and 4) be free from delusions regarding making the will.

Will may be invalid due to lack of formal validity

In order for a will to be valid, it must meet the formal requirements as set out in s. 37 of the WESA: i.e. it must be written, and signed by the will maker in the presence of two witnesses who also sign the will. If a will does not meet these formal requirements, it is an invalid will and of no force or effect unless an applicant is successful in obtaining a court order pursuant to s. 58 of the WESA that the will is cured of its deficiencies, or the will is valid pursuant to the jurisdiction that it was made pursuant to s. 80 of the WESA.

What happens if a will is declared invalid

If a will is found to be invalid, a previous valid will takes its place. If the deceased person had no other will, his or her estate will be distributed according to the laws of intestacy, which are set out in Part 3 of the WESA.

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We believe it’s important to know your legal rights and obligations before making any decisions. That’s why we offer 30 minute free consultations to give you the opportunity to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.

How BC courts test capacity and undue influence in a will

The section 52 reverse onus

British Columbia changed the way undue-influence cases are fought. At common law, the person attacking a will had to prove undue influence outright, which was hard. Section 52 of the Wills, Estates and Succession Act shifts that burden in the right circumstances. Once a challenger shows that the person who benefited from the will was in a position where the potential for dependence or domination of the will-maker existed — an adult child running an ailing parent’s finances, a caregiver the will-maker relied on — the burden moves to the person defending the will to prove it was not the product of undue influence. That reversal is often the practical hinge of a contested estate, and it is why capacity and undue-influence claims are so frequently run together.

Testamentary capacity: Banks v Goodfellow

Capacity to make a will is measured against a test from an 1870 English case, Banks v Goodfellow, that BC courts still apply. At the time of signing, the will-maker had to understand four things: that they were making a will and what a will does; the general extent of what they owned; who might reasonably expect to benefit from their estate; and they had to be free of any disorder of the mind or delusion that distorted those judgments. The bar is specific to willmaking, so a person with early dementia can still meet it in a lucid interval, while an outwardly sharp person can fail it because of one fixed, false belief about a family member. Because capacity is judged at the moment of signing, contemporaneous medical records, the drafting lawyer’s file notes, and the witnesses’ recollections carry real weight. The “golden rule” from Kenward v Adams encourages a solicitor to have a medical practitioner assess an aged or seriously ill will-maker and record the result.

Undue influence is coercion, not persuasion

Undue influence means coercion — pressure that overpowers the will-maker’s own wishes so the document reflects someone else’s intentions rather than their own. Ordinary persuasion, appeals to affection, or a forceful personality are not enough (Wingrove v Wingrove). The standards also differ by transaction. For a lifetime gift, equity presumes undue influence from a relationship of dependency; for a will, the s.52 reverse onus described above applies once the potential to dominate is shown. Knowing which framework governs shapes the whole file.