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.
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.
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.
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.
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.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at