Ministry of Attorney General's Discussion Paper on Undue Influence in Relation to Preparation of a Will

The Ministry of Attorney General, Justice Services Branch, Civil and Family Law Policy Office (that's a mouthful) has requested comments on a discussion paper entitled "Undue Influence in Relation to Preparation of a Will." The issue is whether a presumption of undue influence should apply to wills if the beneficiary was in a position to dominate the testator.

In British Columbia, there is a presumption of undue influence in some circumstances where one person makes a gratuitous transfer of assets to another. If the recipient was in a position to dominate the person who made the transferor, the courts may require the recipient to prove that the person who made the transfer did so freely and voluntarily. For example, if the recipient was the person's caregiver, the courts may apply the presumption.

But, in the case of a will, the courts have said that someone challenging a gift in the will must prove actual undue influence, and cannot rely on a presumption of undue influence.

The Ministry of Attorney General has asked for comments on three different options:

1) Maintain the status quo, where the challenger always has the onus to prove that undue influence actually occurred;
2) Change the law so that the principles and presumption respecting inter vivos transfers of property are also applied where undue influence is alleged in relation to wills; or
3) Change the law as is proposed in option 2 only with respect to beneficiaries other than the testator’s children.

You can send in your comments by December 15, 2007. The discussion paper sets out the fax number and email address for replies.

Here are my comments:

Thank you for providing an opportunity to comment on the issue of whether or not a presumption of undue influence should apply to testamentary gifts if the beneficiary was in a position to dominate the will of the testator.

In my view, the presumption should apply.

The rationale for the presumption in the case of inter vivos gratuitous transfers is not only that the transferor is deprived of an asset. It is also “to prevent the relations which existed between the parties and the influence arising therefrom being abused." I have quoted a frequently cited passage from Lord Justice Cotton’s judgment in Allcard v. Skinner (1887), 36 Ch. D. 145.

This rationale applies with equal force to testamentary gifts as to inter vivos transfers. Where undue influence occurs, the abuse is not merely the loss of property, but the loss of autonomy. Applying a presumption in appropriate circumstances affords greater protection to those who are vulnerable to abuse.

In many cases a presumption of undue influence would be easily rebutted by providing evidence that the testator received independent advice. A careful lawyer will insist on meeting with his or her client alone. The lawyer will also get full information from the client about the client’s family and assets, and discuss various estate planning options.

Where the lawyer takes appropriate precautions, his or her testimony will likely rebut a presumption of undue influence unless there is some evidence of actual undue influence.

The suggestion in the discussion paper that a change in the law might “encourage discord and unjustified litigation in testators’ families” does not ring true in my
experience. People go to estate litigation lawyers because there is already discord in the family. In most cases where the presumption will apply, there will also be a legitimate question about the testator’s capacity. The presumption may affect the outcome of some cases, but it will not affect the volume of cases.

I also disagree with the suggestion that the formal witnessing requirements in wills afford sufficient protection against undue influence. Getting two acquaintances to witness a will does not reduce the risk of undue influence. The fact that many people get lawyers draft and witness a will does assist, provided that the lawyers take appropriate steps to make sure that the will reflects the testator’s intentions. But, as I discuss above, the evidence of a careful lawyer will usually rebut a presumption of undue influence.

Finally, I don’t think there is any reason to exclude a class of beneficiaries, such as the testator’s children from the presumption. The cases in which undue influence is in issue are not contests between the testator’s only child and the testator’s second cousins. The disputes are more commonly among the testator’s children, all of whom are the natural objects of the testator’s bounty. Sadly, some of the worst cases of abuse of vulnerable adults are perpetrated by close family members.