Quick answer: Undue influence means a gift or a will was the product of pressure rather than the free choice of the person who made it. In British Columbia, two separate presumptions can apply: one for wills under section 52 of the Wills, Estates and Succession Act, and a common-law presumption for gifts made during life. When either applies, the person defending the gift or will has to prove it was made freely.
The case of Longmuir v. Holland, 2000 BCCA 538 is a tale the presumption of undue influence and testamentary incapacity; and a dispute between two nieces of a widow who passed away with no children of her own. Both nieces hoped to inherit their aunt’s house.
In 1983 the aunt entered an agreement with one of the nieces, Ms. Holland, under which Ms. Holland and her husband would live with her aunt in exchange for certain services. Four months after making the agreement, the aunt changed ownership of the house so that the Hollands were joint tenant owners. The relationship between them became strained and in 1986 the aunt severed the joint tenancy and made a new will leaving her estate to Ms. Longmuir, her other niece. Ms. Holland retained her interest in the house, and when the Hollands separated Mr. Holland assigned his one-third interest to Ms. Holland. Then in 1990 the aunt made a further will dividing the estate between both nieces and two other people. Finally, in 1991, she made another will leaving her estate to Ms. Holland. At that time, Ms. Holland was still living with the aunt and continued to live with her until she passed away. Ms. Longmuir sought to have the 1991 will declared invalid as a result of the aunt’s mental incapacity or undue influence on the part of Ms. Holland.
There was no direct medical evidence regarding the aunt’s testamentary capacity in 1990 and 1991, but there was evidence that by 1992 she lacked such competence. The doctor who examined her in 1992 also noted that Ms. Holland was overprotective and overbearing, and thought that the aunt would at this time have been susceptible to undue influence. Ms. Holland gave evidence that the aunt had testamentary capacity in 1991, but the trial judge questioned the truth of Ms. Holland’s evidence and put very little weight on it. He found that the 1990 will was valid, but also found that the Hollands might have unduly influenced the aunt with respect to the transfer of an interest in the home to them, and so he set aside the transfer of the property on the grounds of public policy.
A presumption of undue influence?
The Court of Appeal allowed the appeal in part. The majority found that the aunt had the opportunity for independent legal advice and understood the advantages and disadvantages of transferring the property into joint ownership in 1984. However, the majority went on to find that there were enough suspicious circumstances surrounding the aunt’s testamentary capacity and the presumption of undue influence by Ms. Holland as to render the 1991 will invalid. In particular, the majority noted that the aunt was found to be incapable in 1992 and in the doctor’s opinion her decline had likely been happening for some time. Additionally, there was evidence to the effect that Ms. Holland made it difficult for the aunt’s relatives to even see her after the 1991 will was executed, and that Ms. Holland controlled the aunt’s mail and prevented her from replying to letters.
The final word
When a person who is in a position to exercise a dominating influence over another receives a substantial benefit from that other, there is a presumption of undue influence. Far from rebutting the presumption, the evidence supported the conclusion that Ms. Holland unduly influenced her aunt.
Two presumptions of undue influence, not one
People use “undue influence” as a single phrase, but British Columbia law splits it into two tracks that work differently, and knowing which one applies decides who has to prove what. One track governs wills. The other governs gifts and transfers a person makes while still alive. The case above involved both a will and a lifetime transfer of a house, which is why it is a useful illustration — but the rules behind each are not the same.
Undue influence and a will
For wills, section 52 of the Wills, Estates and Succession Act (SBC 2009, c. 13) changed the old common-law position. Where a person challenging a will shows that another person was in a position where the potential for dependence or domination of the will-maker was present, the burden shifts. The party seeking to uphold the gift then has to prove that it was not the product of undue influence. Under the earlier common law, the person attacking the will carried that burden throughout. The reversal matters, because undue influence usually happens behind closed doors, where the challenger has little direct evidence of what was said.
Undue influence and a gift made during life
A gift or transfer made while the giver is alive — money, a property transfer, adding someone to title — falls under a separate common-law presumption. It arises in two ways: from the nature of the relationship between the parties, or from the nature of the transaction itself. The Supreme Court of Canada set out the framework in Geffen v. Goodman Estate, [1991] 2 SCR 353. Certain relationships carry the potential for one person to dominate the will of another; where such a relationship exists and a substantial benefit passes, the person who received it must show the giver acted of their own free will.
What “potential to dominate” actually means
Neither track requires proof that someone stood over the will-maker and dictated terms. The question is whether the relationship created the potential for one person to influence the other’s decisions — through dependence, control of daily life, control of information, or isolation from family. Screening a person’s contact with relatives, controlling their mail, and managing their day-to-day affairs are the kinds of control the doctrine is aimed at. Dependence caused by age, illness, or failing memory raises the stakes, because a person who relies on a caregiver for everything is more open to pressure, whether or not any pressure is ever spoken aloud.
How the presumption is rebutted
Once a presumption applies, the person defending the gift or will has to answer it. The usual way is to show the giver acted with full, free, and informed thought. Evidence that carries weight includes independent legal advice given away from the person who benefits, a lawyer’s notes recording that the giver understood the effect of what they were doing, and proof that the giver kept access to their own information and other relationships. Independent legal advice is not a magic cure — a court looks at whether the advice was real and understood, not whether a box was ticked — but its absence in a suspicious situation is hard to explain away.
Steps that protect a gift or a will
If you are making a significant gift or leaving your estate in a way that departs from what people expect, a few steps make the decision far harder to overturn later. Meet the lawyer alone, without the person who benefits in the room. Have the lawyer record, in your own words, why you are making the decision. Where capacity might later be questioned, a medical assessment close to the date supports the record. If you are the one receiving a substantial benefit from someone who depends on you, encouraging them to get their own advice protects you both — it is the clearest evidence that the choice was theirs.
Frequently asked questions
Who has to prove undue influence over a will in BC?
In British Columbia, section 52 of the Wills, Estates and Succession Act can shift that burden. If the person challenging the will shows that someone was in a position where the potential for dependence or domination of the will-maker existed, the person seeking to uphold the will must then prove the gift was not the product of undue influence. This reverses the older common-law rule, under which the challenger carried the burden throughout.
Is undue influence the same as a lack of mental capacity?
No. They are separate grounds for challenging a will, and a will can be attacked on both. Capacity asks whether the will-maker understood what they were doing. Undue influence asks whether the will reflected their own free choice or someone else’s pressure. A person can have full capacity and still be unduly influenced.
Does a gift made during someone’s lifetime fall under the same rule?
Not quite. Lifetime gifts and transfers are governed by a common-law presumption that can arise from the relationship between the parties or the nature of the transaction, described by the Supreme Court of Canada in Geffen v. Goodman Estate. The wills provision in section 52 of WESA applies to gifts made by will, not to transfers made while the giver is alive.
How do you defend a gift against a claim of undue influence?
The person defending the gift has to show the giver acted with full, free, and informed thought. Independent legal advice given away from the person who benefits, a lawyer’s record of the giver’s reasons, and evidence that the giver understood the effect of the transaction all help. The advice has to be genuine and understood, not a formality.
Does caring for an elderly relative create a presumption of undue influence?
Caregiving alone does not automatically invalidate a gift, but a relationship of dependence can create the potential for one person to dominate another’s decisions. Where that potential exists and a substantial benefit passes, a court may expect the person who received it to show the choice was freely made. Keeping the giver’s independence and access to their own advice matters.
Disclaimer: The information on this page is general legal information about British Columbia law, not legal advice for any specific situation. Reading this page does not create a solicitor-client relationship. BC law changes, and the law and procedure that apply to any particular case depend on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia estate lawyer directly. Past results and illustrative scenarios do not guarantee similar outcomes in any specific case.