Undue Influence and BC Wills: Warning Signs and How Claims Work

A parent's last will leaves most of the estate to the child who lived with them, or to a caregiver who arrived late in life. Others in the family are left asking whether the will reflects what the parent wanted, or what someone else wanted.

BC law lets a court set aside a will, or part of one, that was the product of undue influence. This article explains what that means, how the burden of proof works under the Wills, Estates and Succession Act, and the practical steps to take if you have concerns.

What undue influence means

Undue influence is not ordinary persuasion. Family members are allowed to ask, suggest and even argue about who should receive what. The law draws the line at pressure that overpowers the will-maker's own judgment, so that the will expresses someone else's wishes rather than theirs.

Undue influence is also different from a lack of capacity. A will-maker can be fully capable of understanding a will and still be coerced into signing one. The two claims are often raised together, but they ask different questions. If memory loss or dementia is part of your concern, see our article on challenging a will for lack of capacity.

How section 52 of WESA changes the burden of proof

Section 52 of the Wills, Estates and Succession Act (WESA) sets out how the burden of proof works when undue influence is alleged. The person challenging the will must first show that another person was in a position where the potential for dependence or domination of the will-maker was present.

Once that is established, the onus shifts. The party defending the will, or the challenged gift, must then show that the person in that position did not use it to unduly influence the will-maker with respect to the will or the provision being challenged.

In practice, this makes the relationship itself the first battleground. Evidence about who controlled the will-maker's daily life, money, transport, medication or contact with others becomes central, because it decides whether the burden moves to the other side.

Warning signs families often notice

No single fact proves undue influence, and many of these situations have innocent explanations. Courts look at the whole picture. Circumstances that commonly prompt a closer look include:

• A late change in favour of a helper. A new will made shortly before death that benefits a caregiver, new partner or one child who managed the will-maker's affairs.
• Isolation. Other relatives were discouraged from visiting or calling, or the will-maker's contact with friends dropped off.
• Dependence. The will-maker relied on the beneficiary for care, housing, finances or getting to appointments.
• Involvement in the will. The beneficiary chose the lawyer or notary, booked the appointment, attended the meeting or held on to the documents.
• A break from long-held plans. The new will departs sharply from earlier wills or from what the will-maker said for years, without a clear reason.
• Secrecy. The change was kept from other family members until after death.

Evidence that matters in an undue influence claim

Claims of this kind usually turn on records and witnesses, not just family recollection. Useful evidence may include:

• earlier wills and the drafting lawyer's or notary's notes, including who attended and what instructions were given;
• medical records showing frailty, dependence or cognitive change;
• bank records showing who controlled accounts and whether large transfers were made;
• texts, emails and diaries that show the will-maker's relationships and stated intentions;
• evidence from neighbours, friends, care staff and others who saw the will-maker regularly.

Some of this material is held by people who will not hand it over voluntarily, so it often has to be obtained through the court process. Acting early helps preserve evidence before records are destroyed or memories fade.

Timing and what to do if you have concerns

If you think a will was the product of undue influence, timing matters. Obtaining probate does not generally permit immediate distribution: WESA imposes a 210-day restriction after the grant, subject to statutory exceptions or a court order. Nevertheless, obtaining advice before probate can preserve important options for challenging the will. There are court procedures that can pause the probate process while a challenge is considered, and once a proceeding that may affect the distribution has been started, the executor needs the court's consent to distribute the estate, even after the 210 days. Assets that have already been distributed are harder and more costly to recover.

Steps worth taking now:

• write down what you observed, with dates, while it is fresh;
• keep any letters, messages or documents you already have;
• find out who the executor is and whether a probate application has been made;
• avoid confronting the beneficiary in ways that could escalate the dispute or be used against you later.

Undue influence, wills variation and other estate claims

An undue influence claim asks the court to treat the will, or part of it, as invalid. That is different from a wills variation claim, which accepts the will as valid but asks the court to vary it because it does not make adequate provision for a spouse or child. A wills variation claim has a strict deadline: it generally must be started within 180 days after the grant of probate is issued in BC. Some families bring both claims together. Our article on wills variation and the 180-day limit explains that route.

Estate disputes can also involve executors who are not acting properly, assets transferred before death, or joint accounts. Our overview of estate disputes in BC sets out the main options. Which claim fits, and in what order, depends on the facts and the evidence available.

Worried a will was made under pressure? Get an early assessment

Our probate and estate lawyers can review the will, the circumstances in which it was made and the evidence available, explain whether section 52 of WESA may apply, and advise on the steps and timing for a challenge.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.