Undue Influence and Will-Making
August 22, 2017
BY Allison Curley
This series examines and compares recommendations made in several BCLI reports and those made by the Law Commission of England and Wales. To read the other posts in the series click here.
Undue influence can be defined as a situation where a person is pressured to perform a legal act, and where that person does not truly wish or intend to perform that act. Using will-making as an example, undue influence would be a situation where a person influences or pressures another person to create a will. Individuals who are in a vulnerable situation may be subject to undue influence to carry out legal acts, such as gift giving, or creating a will.
The topic of undue influence is especially significant in the law of wills, as one of the prerequisites for a valid will is the absence of undue influence. BCLI recognized the importance of legal practitioners being alive to the issue of undue influence, and published Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide (“BCLI’s Guide”) in 2011. BCLI also examined undue influence in our earlier publication, Wills, Estates and Succession: A Modern Legal Framework.
This week’s post in the wills series considers how BCLI and the Law Commission of England and Wales have approached the topic of undue influence in the context of will-making.
The Law Commission’s Approach to Undue Influence
The Law Commission’s new consultation paper, entitled Making a Will, notes that the question at the heart of their examination on undue influence is how the law can best protect testators who have testamentary capacity, but who may be subject to undue influence.
The Law Commission observes that the person challenging the will bears the burden of proving undue influence and that undue influence will not be presumed in English law.
The Law Commission suggests that the need to protect testamentary freedom must be the central consideration for reform, but it is also necessary to balance two equally important objectives:
“(1) The law must provide adequate protection to vulnerable testators by ensuring that wills that do not reflect the freely made wishes of the testator are able to be challenged.
(2) The law must not encourage speculative or spurious claims by disappointed beneficiaries.”
With regards to financial abuse, the Law Commission states that, “[s]takeholders we have spoken to have expressed concern that it is currently too difficult to challenge a will on the basis of testamentary undue influence. In particular, stakeholders are concerned that vulnerable testators are not adequately protected from financial abuse in older age.”
The Law Commission has provisionally concluded that, “there is a need for a specific, statutory form of testamentary undue influence that can focus on the particular harm that undue influence seeks to prevent in the testamentary context.” The Law Commission then asks consultees for their feedback as to whether a doctrine of testamentary undue influence should or should not be created in statute.
In considering how testamentary undue influence should be captured in statute, the Law Commission made note of section 52 of British Columbia’s Wills, Estates and Succession Act. Section 52 of WESA states that,
In a proceeding, if a person claims that a will or any provision of it resulted from another person
(a) being in a position where the potential for dependence or domination of the will-maker was present, and
(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.
The Law Commission suggests in the consultation paper that the WESA provision on undue influence (s. 52) makes the scope too wide. The Law Commission states that, “[i]t focuses on the finding of a relationship of influence, to the exclusion of any requirement that the disposition calls for explanation.”
The Law Commission suggests that there could be two approaches to a statutory doctrine of testamentary undue influence. These two approaches are discussed in more detail below.
The Structured Approach
With the structured approach, “a presumption of undue influence would be raised (as it is under the general doctrine) where two pre-requisites are shown in the evidence:
- the existence of a relationship of influence, which would be presumed in respect of some relationships; and
- the disposition calls for explanation.”
The Law Commission listed four instances where there would be a relationship of influence, and where the irrebuttable presumption would be raised where a testamentary gift is made by the testator to: (a) a trustee; (b) a medical advisor; (c) a person who prepared the testator’s will for remuneration; and (d) a professional carer.
With respect to the second prong of the structured approach, the Law Commission noted that, “[g]reat care must be taken to ensure that this provision regarding the conduct of the beneficiary is not interpreted too widely.” Further to this point, the Law Commission states that, “[t]he second factor is designed to catch circumstances where the beneficiary has not been involved in making the will, or the beneficiary’s involvement is not such as to suggest that the will calls for explanation, but the circumstances in which the will is made are such to cast suspicion of undue influence.”
The Discretionary Approach
In contrast to the structured approach discussed above, the discretionary approach would, “give the court the power to presume undue influence while only having to take into account these factors [the structured approach prongs] and the general circumstances of the case.” The discretionary approach would consider the prongs of the structured approach, but there would be “less focus on the precise scope of those concepts” and this would “ensure greater flexibility.” If courts were afforded the opportunity to presume undue influence through statute, it would then be up to the proponent of the will to rebut that presumption.
BCLI’s Approach to Undue Influence
Over the course of the Wills, Estates and Succession Project, “an intense debate took place regarding whether the principles and presumption respecting inter vivos dispositions of property should be applied in cases of alleged undue influence in relation to wills.” While a subcommittee recommended a provision along the lines of what was later enacted as section 52 of WESA, there was no consensus reached amongst Project Committee members regarding a change to the principles of undue influence with respect to wills. For this reason, the final recommendations that ultimately went forward and culminated in the enactment of WESA did not address testamentary undue influence. Section 52 nevertheless appeared in the reform legislation when passed.
“Recommended Practices for Wills Practioners Relating to Potential Undue Influence: A Guide”
In 2011, BCLI developed a guide for legal practitioners who might come across undue influence in the context of their work. BCLI’s Guide recognizes that section 52 of WESA lessens the evidentiary hurdles that a challenger would have faced before section 52’s implementation. The Guide notes that this could “lead to increased litigation on grounds of undue influence, which would mean that practitioners may find themselves testifying increasingly often as witnesses in these cases.”
The Guide cautions that practitioners must be more alive to the fact that undue influence could be a potential source of estate litigation as well as invalidity of wills. Further, the Guide suggests that practitioners should be able to recognize and respond appropriately to “red flags” of potential or actual undue influence. The Guide states that practitioners should be able, “to interact tactfully but effectively with the will-maker in order to elicit the information necessary for them to properly assess the will-maker’s situation and ability to act freely.” Lastly, the Guide suggests that practitioners should keep and retain appropriate records.
Undue influence in the context of will-making is a contentious issue, and one that the Law Commission has approached differently than BCLI. The Law Commission has provisionally concluded that legislation should provide for an evidentiary presumption of undue influence once a circumstantial foundation has been laid, and asks consultees whether they agree or disagree. The Law Commission identified two approaches to a statutory presumption of undue influence; the “structured approach” and the “discretionary approach.”
BCLI did not originally recommend statutory relaxation of the evidentiary burden on a will challenger to prove undue influence. However, the enactment of section 52 of WESA induced BCLI to create a practical tool for legal practitioners to deal with the effect of that change in the law.
Undue influence will be a topic at the Canadian Centre for Elder Law’s upcoming Elder Law Conference, Coming of Age: Elder Law in Canada and its Future. The conference take place on November 2nd and 3rd, 2017 in Vancouver. The session on undue influence is entitled, “Capacity, Undue Influence, and Independent Legal Advice: How to Interview and When to Insist on Independent Legal Advice,” and is scheduled for Thursday, November 2. Presenters at this session will be Sara Beheshti of O’Sullivan Estate Lawyers LLP, Stanley Rule of Sabey Rule LLP, and Kimberly A. Whaley of WEL Partners. More details on the conference and its agenda can be found here!