Category: Undue Influence
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What Is Undue Influence?
According to BC law, when a person of sound mind makes choices regarding their own property, those choices should be given respect. That includes gifts or property transfers during that person’s lifetime, as well as property disposed of in a person’s Last Will and Testament. However, if a person was excessively pressured or manipulated, and […]
Does Independent Legal Advice Rebut Undue Influence?
The existence of undue influence is frequently presumed when the nature of the parties’ relationship suggests a potential for dominance. Overturning this presumption requires evidence that the giver, or donor, participated in the transaction based on their own “full, free and informed thought”. Multiple factors come into play in assessing whether the donor made the […]
Family Dispute Leads to Contested Committeeship Application
When an adult can no longer manage their finances or personal care and a dispute arises over who should decide for them, a family member can apply to the Supreme Court of British Columbia under the Patients Property Act to be appointed committee. The court first needs two medical affidavits confirming incapability, then chooses the […]
Medical Examination Ordered After Alleged Victim of Elder Abuse Denies Incapacity
We are often contacted by concerned family members wanting to step in to help an elderly person whom they suspect is being abused. However, bringing litigation on the senior’s behalf can present a number of challenges. What happens if the elderly person denies any abuse and insists that they are capable of handling their affairs? […]
Family of BC Senior with Dementia Sues Alleged Financial Predator
Predatory marriage is a form of elder abuse that is on the rise. In addition to being conned into marriage by opportunistic predators, vulnerable seniors are taken advantage of in other ways. They may be convinced to change their Will, sign a power of attorney, or add the new partner’s name to a joint bank […]
BC Family Law: What if a Spouse Lacks Capacity to Understand Consequences of Marriage?
In BC, marriage is a contract, so a person must have the mental capacity to understand its nature and consequences. If one party lacked that capacity, a court can annul the marriage, treating it as never valid. Setting a marriage aside for lack of capacity is difficult and carries a heavy burden. Marriage is a […]
Were Elderly Man’s Marriage and Will the Products of Undue Influence by his Caregiver?
In an earlier post, we discussed Ross-Scott v. Potvin, 2014 BCSC 435, a case in which the only living relatives of the deceased challenged what they viewed as a predatory marriage between their elderly uncle and his younger caregiver. The uncle, Mr. Groves, was 77 years old when he married his 56-year-old caregiver, Ms. Potvin, […]
How an Abused Senior Sets Aside Transfer of His Home to Predatory Spouse
Our Vancouver estate litigators and family lawyers have been examining the issue of predatory marriage in BC and concerns that such marriages may be on the rise due to COVID-19 (i.e. the required social distancing and isolation of elderly people). It is possible for a marriage to be found void due to lack of capacity […]
Increased Risk of Predatory Marriage During the COVID-19 Pandemic?
Are BC residents at increased risk of falling victim to predatory marriage during the COVID-19 pandemic, particularly those who are elderly or suffering from cognitive impairment such as dementia? There is some cause for concern that the conditions brought about by the coronavirus pandemic may lead to an increased risk of predatory relationships, so in […]
Suspicious Circumstances: Fluctuating Capacity of Testator
Issues of testamentary capacity and undue influence frequently arise when a new will is made under ostensibly suspicious circumstances: late in a testator’s life, while in the throes of terminal illness and resultant fluctuating capacity, ushering in changes to the estate plan to include new beneficiaries. Such issues were recently raised in Becker v. Becker, […]