I introduced the subject of 鈥渦ndue influence鈥� last week with the real life fact pattern of an 84-year-old leaving the bulk of her approximately million dollar estate to a male prostitute whose services she had been engaging.
Allegations of undue influence against the male prostitute have been made in a lawsuit that is winding its way through the court system.
One definition of undue influence comes from the British Columbia Court of Appeal case of Longmuir v. Holland, 2000 BCCA 538, as being 鈥溾�nfluence which overbears the will of the person influenced so that in truth what she does is not his or her own act.鈥�
The relationship between the will-maker and the person accused of exercising undue influence is of utmost importance.
Section 52 of the Wills, Estates and Succession Act says that if someone establishes that a will arose in circumstances where the potential for dependence or domination existed as between the will-maker and another person, the onus of proof then shifts to the person defending the will to establish that undue influence was not exercised.
It is common for 鈥渢he potential for dependence or domination鈥� to exist in relationships between elderly folks and those who care for them.
It鈥檚 reasonable to expect that an elderly person receiving loving care and support might develop a level of affection or appreciation for the caregiver and might want to express those feelings through their will.
This might result in one child, who takes on the caregiving roles, receiving more of an inheritance than other children.
Or a friend or acquaintance taking on those roles receiving an inheritance that reduces amounts that would otherwise go to the next of kin.
There is nothing unlawful about that.
But the caregiver鈥檚 inheritance comes out of what otherwise would have been someone else鈥檚 inheritance. If that 鈥渟omeone else鈥� brings a lawsuit to attack the will, the caregiver will be put in the position of having to prove that the gift to the caregiver was the result of the will-maker鈥檚 full, free and informed thought.
Legal decisions have established a number of factors for determining whether this has been established. The following list has been provided in a number of cases:
- the lack of actual influence or opportunity to influence the donor;
- the donor's ability to resist any such influence;
- the donor's knowledge and appreciation about what she was doing; and
- whether the donor received independent legal advice.
The last factor can be an incredibly important one because the lawyer handling the will transaction can and should be assessing the first three factors in the course of that work.
But having a lawyer involved isn鈥檛 necessarily a clincher. The quality of the legal advice will be considered. The following factors have been provided in a number of cases:
- whether the recipient was present at the time the advice was given and/or at the time the documents were executed;
- whether, though technically acting for the donor, the lawyer was engaged by and took instructions from the recipient;
- in a situation where the proposed transaction involves the transfer of all or substantially all of the donor's assets, whether the lawyer was aware of that fact and discussed the financial implications with the donor;
- whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place;
- whether the lawyer discussed other options whereby the donor could achieve their objective with less risk;
- whether the lawyer confirmed the donor鈥檚 understanding of the transaction and their voluntariness to do so;
- whether the lawyer advised the donor as to the merits or wisdom of the transaction; and
- whether the lawyer was satisfied the transfer was right and proper, in all the circumstances of the case.
Next week, I will provide practical advice of steps that can be taken to minimize the likelihood of an undue influence attack on a will. And also to minimize the likelihood that such an attack will be successful.
Paul Hergott
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
