Written on November 8, 2012 – 8:08 am | by Justin de Vries
British Columbia has proposed new legislation that would establish a presumption of undue influence: Section 52 of the new Wills, Estates and Succession Act, S.B.C. 2009, c.13.
The effect of this legislation is to create a presumption of undue influence where certain types of relationships exist. The legislative presumption of undue influence imposed on the testamentary context is similar to the one that already exists for inter vivos transfers. Under the proposed legislation, a party attacking a will needs only to show that the testator was in a position of dependence or submission to the beneficiary for the presumption to apply. Once triggered, the burden of proof shifts to the beneficiary who must then prove that the will was not the result of undue influence.
Those who support the proposed changes believe that the current state of law imposes an unfair burden of proof for will challenges. Supporters feel that the creation of a presumption of undue influence will ease the evidentiary burden on attacking parties. It is hoped that the presumption will result in greater evidentiary fairness by imposing the burden of proof on the alleged influencer. The belief is that the same close relationship that triggered the presumption of undue influence in the first place also puts the alleged influencer in a better position to know the facts of the will drafting and present evidence to that effect.
The proposed change is not without its critics. Adam Parachin, law professor at Western University, criticized section 52 on several grounds. First among them was his defence of the law as it exists now. He argued that the courts’ willingness to consider circumstantial evidence means that examples of successful undue influence cases are no longer in short supply. He argues that this suggests that meritorious cases of undue influence do not need a presumption to succeed. As a result, the only effect of the presumption will be to make it easier to overturn wills, thus increasing the amount of litigation and mediation. His fear is that by making it easier to overturn wills, the law’s commitment to testamentary freedom is eroded. The impact of the presumption will be especially strong on wills that depart from the “norm” (i.e. wills that do not divide the testator’s estate equally between family members). Thus the presumption will have the effect of denying testamentary freedom to eccentric individuals.
The Wills, Estates and Succession Act has been postponed from its original enactment date of 2011 to 2013 as the legislature continues to debate these and other issues.
Finally, on a separate note, the 15th Annual Estates and Trusts Summit will be held on November 14th and 15th at the LSUC. Day 1 canvases litigation topics while Day 2 considers estate planning and administration issues. The two day programme is a signature event in the estate and trust bar and well worth attending. Mark your calendars and register today.