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 thus prevented from making decisions freely and voluntarily, they are regarded as having been under “undue influence,” which can be used to challenge the will, gift, trust, or asset transfer. It is important to understand the concept of undue influence so you can watch out for red flags in your own life and be on alert for suspicious circumstances in the relationships of a family member or friend.
If you’re concerned that you or a loved one have fallen under undue influence, it’s essential that you seek advice from an experienced estate lawyer. At Onyx Law Group, our lawyers are adept at resolving issues of undue influence and lack of capacity. We have built a strong reputation throughout British Columbia for providing quality legal service and personal attention at every stage of the process. Contact us today to schedule a free consultation.
Cases involving undue influence can be complex and difficult to prove. In today’s blog post, we’ll explain undue influence, how to prove undue influence, and how to win an undue influence case.
What Is Undue Influence?
Undue influence occurs when someone is coerced or manipulated into making decisions without their free will. It involves situations where a person uses power over another person, usually to their own benefit. For example, a child may pressure a parent of advanced age into transferring property to them without consideration or making a will that excludes their siblings.
The key question in that example is this: does the property transfer or legal document reflect the parent’s true wishes or intentions, or does it reflect the wishes of the child who influenced their elderly parent? If the parent in our example was the victim of undue influence by their child, the will can be challenged or the property transfer set aside.
Undue influence may arise in any relationship. That being said, there are some common situations where the risk of undue influence is heightened, usually due to power imbalances or vulnerability of one of the parties. Situations involving domestic violence, elder abuse, or predatory marriage are prime examples.
Adults of advanced age are frequently the victims of undue influence, particularly those who are struggling with physical ailments, memory problems, terminal illness, or other diseases such as Alzheimer’s or dementia. Elderly people are often at the mercy of others for their emotional and physical needs. For example, a caretaker—which can be a friend or family member, a person hired to come to the house, or a nursing home employee—may use threats to withdraw care or other abusive tactics to convince an elderly adult to change his or her estate plan in the caretaker’s favour.
What Is the Difference Between Influence and Undue Influence?
Mere influence by itself is not enough when it comes to the doctrine of undue influence. A person can give advice, encourage, or try to influence another person—even beg them to do something—without it being “undue” influence, so long as the target of the influence remains able to make their own decision and act as a free agent.
There must be coercion or pressure to such a degree that a person is not acting of their own free will (“This is not my wish, but I must do it.”). There is no need to show physical violence, confinement, or threats, though such conduct is frequently present in relationships of undue influence.
What Is the Difference Between Undue Influence and Fraud?
At its core, fraud is deliberately depriving someone of their property or money through deceit, manipulation, or misrepresentation. Undue influence is a type of fraud. Other examples of fraud include bank fraud, forgery, credit card fraud, and identity theft.
Common Scenarios of Undue Influence
In some cases, undue influence is obvious. In other cases, it can be subtle and difficult to detect. There are some common scenarios and major red flags to watch out for, including:
- Large transfers of wealth. For example, substantial pre-death transfers of major assets into joint names with an alleged influencer, so that there is nothing left in their estate for their heirs when they die.
- Significant changes in estate planning that drastically depart from a will-maker’s last will. For example, a new will that disinherits the will-maker’s children in favour of a late-in-life second spouse.
- Estate planning or property transfers being done behind closed doors, often facilitated by a new spouse, caretaker, or “best friend” who swiftly becomes very close and then isolates a vulnerable person from trusted friends and family members.
- Recent bereavement and recent family conflict can create situations that provide the opportunity for someone to unduly influence another person.
- A vulnerable person may be pressured into signing a Power of Attorney that gives the alleged influencer power over the victim’s property.
- Elder financial abuse is another red flag (e.g., financial coercion; being unduly influenced to add an alleged influencer to bank accounts; influence imposed to change beneficiary designations in pensions or life insurance in favour of an alleged influencer).
If those or any other red flags arise, reach out to an estate attorney at Onyx Law Group to discuss your concerns and get advice.
How to Prove Undue Influence
These types of cases can be complex and difficult to prove. Allegations shouldn’t be made lightly; if you allege undue influence but fail to prove it, it can attract an award of special costs against you.
The general rule is that there must be some evidence of actual influence to establish that a will is invalid or that the transfer of an asset should be set aside. It is not enough to show that a person had the power to coerce another, or the opportunity to influence another.
To amount to undue influence, there must be evidence that the overbearing power was in fact exercised and that legal documents were signed or a property transfer was made because of that exercise of power. In other words, it must be shown that the influencer exercised undue influence, and that the victim acted differently than he or she would have if their decision had been made independently.
Who Must Prove Undue Influence?
In the section above, we discussed the general test to prove actual undue influence based on coercion, fraud, or improper conduct. In those cases, the party alleging undue influence has the burden of providing evidence to prove it on a balance of probabilities.
There is a second class of cases in which the burden of proof is reversed: presumed undue influence, which arises from certain relationships that have the potential for dependence and dominance. The reverse onus, which comes from section 52 of the Wills Estates and Succession Act (“WESA”), only applies in relation to testamentary undue influence; i.e., in relation to wills. However, there is a presumption of undue influence at common law, similar to the one in WESA section 52, that applies to transfers of assets during a person’s lifetime when the nature of the relationship is characterized by the potential for domination.
Presumed undue influence is typically found in relationships such as caretaker and ward (e.g., an elderly family member who relies on the caretaker for their emotional and physical needs) or solicitor and client. Once the presumption of undue influence arises, the burden shifts to the alleged influencer to rebut the presumption by showing the person acted of his or her own “full, free and informed thought.”
Evidence Needed: Proving or Disproving Undue Influence
The evidence required to establish undue influence varies case-by-case. Often, evidence comes from the surrounding circumstances or indirect indicators, such as:
- Substantial pre-death transfers of wealth to the alleged influencer
- Evidence that instructions to change a will came from the alleged influencer
- The victim using a new, unknown lawyer chosen by the alleged influencer to draft estate documents or paperwork to transfer title to property
- Documented statements that the will-maker was afraid of the alleged influencer
Comparing previous wills or estate planning documents to new versions containing drastic, otherwise unexplainable changes can also provide compelling evidence. Conversely, a person accused of undue influence can rebut the allegation by providing evidence substantiating the will-maker’s legitimate reasons for making the changes to their estate plan.
The Consequences of Proving Undue Influence
We talked about how to win an undue influence case; now let’s talk about legal remedies for undue influence once it’s established. When undue influence is established to challenge a testamentary disposition (e.g., a will), the consequence is that the document is declared invalid by the court and set aside in favour of a previous valid will. If the deceased person didn’t have a previous valid will, their entire estate will be distributed according to the laws of intestacy, which are set out in Part 3 of WESA.
When undue influence is established in relation to a gift or transfer of an asset made during a person’s lifetime (an “inter vivos” gift or transfer), the gift or transfer can be voided, which means the transaction is set aside and the property in question is returned to the victim.
How to Protect Yourself and Your Loved Ones from Undue Influence
In addition to watching out for the red flags discussed above, another great way to protect against undue influence is to have open, honest conversations with your loved ones about intentions with respect to property and estate planning wishes. Be transparent with each other and put everything in writing, including the reasons for any gifts and the rationale for the estate plan.
Be proactive if you are concerned that you or a loved one may be susceptible to undue influence. Talk to a trusted lawyer about your concerns. It is often the case that independent legal advice is needed before legal documents are signed or assets or property are transferred.
Independent legal advice on the nature and consequences of the transaction in question can also help ensure that a decision or legal document is the product of the person’s free will. Be warned, however, that independent legal advice may not always be sufficient to rebut the presumption of undue influence. Where there are real concerns over the possibility of undue influence, there will be a need to obtain “informed advice” on the merits of the transaction. An attorney can help you determine what type of advice is needed to safeguard the validity of the transaction.
Have Concerns About Yourself or a Loved One?
If you believe that you or a loved one has been the victim of undue influence, or need more information about possible undue influence in your unique circumstances, we encourage you to reach out to our estate litigation lawyers for guidance.
At Onyx Law Group, we are committed to resolving issues efficiently and avoiding lengthy litigation whenever possible. One of our experienced estate lawyers can facilitate constructive conversations and use negotiation and mediation techniques to resolve conflicts. If these methods don’t achieve a resolution, we are prepared to take your case to trial to get results.
The British Columbia estate lawyers at Onyx Law Group work hard to reach a fair and amicable resolution of legal matters while preserving important family relationships as much as possible. We welcome you to contact us today so we can help you find the best way forward.