Sunday, October 18, 2009

Vancouver Sun Article on the Wills, Estates and Succession Act

I was pleased to see that the Vancouver Sun had an article on British Columbia’s new Wills, Estates and Succession Act, which has been passed by the Legislative Assembly, but is not yet in effect. The commercial press doesn’t give a lot of coverage to succession law reform.

I was pleased, I should say, until I actually read the article by Vancouver Sun reporter Ian Mulgrew, entitled “Where there’s a will, there will soon be an end to archaic laws.”

In the Sun article Mr. Mulgrew focused on one aspect of new Act: a change in the burden of proof of undue influence in disputes over wills. It is probably not the change I would pick to write about, if I were writing just one article on British Columbia’s succession law reform. Other changes will affect far more people. But Mr. Mulgrew’s choice of topic is not what bothers me about the article.

I will give you a little background on the change. The common law rule in British Columbia is that if you are challenging a will on the basis that someone exercised undue influence on the maker, that is influence of such a nature that the will does not truly reflect the testator’s intentions, you must prove the undue influence. This follows the usual rule that if you accuse someone of doing something wrong, you must prove it. In practice, it is very difficult to prove that someone procured a will by undue influence.

But the common law has a different burden of proof in cases where a vulnerable person makes gifts during his lifetime to a person who is in a position to dominate that vulnerable person. If you attack the transaction and are able to show that the beneficiary of the assets was in a position to dominate, then the burden is on the beneficiary to prove that the gift was made freely. Usually the beneficiary must then show that the vulnerable person had some independent advice before making the gift.

The Wills, Estates and Succession Act will change the burden of proof of undue influence in wills so that if the person challenging the will can show the beneficiary was in a position to dominate the maker, then the beneficiary will have to show that he or she did not exercise undue influence. This is set out in section 52:
52 In an action, 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.
Mr. Mulgrew believes that the change is a good one. But that is not the problem I have with the article. I too support the change. When the Ministry of the Attorney General requested comments from the public on the proposed change, I wrote a letter in support (which I have published on my blog here).

The difficulty I have with the Sun article is that Mr. Mulgrew presents the change as one that is needed because lawyers and doctors are going around unduly influencing their clients and patients to put them in their wills. He writes:

I think one of the most important anomalies the government is moving to fix is the law governing what is known as "undue influence." That's when your doctor, lawyer, would-be pal or suddenly loving relative has you sign away property or cash while you're on your deathbed, non compos mentis or too weak to resist.
How often does this happen? According to Mr. Mulgrew, “Happens regularly.”

What examples of cases close to home does Mr. Mulgrew give of lawyers unduly influencing their clients?

Lawyers in New York last year were caught drawing up wills for wealthy clients and inserting each other’s names for multi-million-dollar bequests of art, apartments and cash.
New York is a little ways away. How about some cases in British Columbia?

There are ugly rumours in the legal community that a couple of B.C. lawyers have engaged in the same legerdemain.
I have never heard these rumours, but I have no reason to disbelieve Mr. Mulgrew that there are rumours. I don’t put a lot of stock in rumours, but they could be true. There are thousands of lawyers in British Columbia, and every year the Law Society of British Columbia has to suspend or disbar a handful of them.

But, contrary to what Mr. Mulgrew implies, lawyers unduly influencing their clients to leave them inheritance does not happen regularly. It would hardly be noteworthy that lawyers in New York (about 4000 km away from Vancouver) were caught in such schemes if it happened regularly. It doesn’t happen regularly, either here or in New York for that matter.

How about examples of doctors taking advantage of their patients to get inheritances? Thankfully, Mr. Mulgrew does not try to give any.

The implications against lawyers and other professionals in the article are unfair, and unsupported.

But what bothers me most about the article is that it may tend to frighten vulnerable people away from the very people who may be able to protect them best against undue influence and other types of abuse.

A careful estate planning lawyer will meet alone with a client preparing a will so that the client can speak in confidence. A lawyer will question his or her client about finances and family. If the client says he or she wishes to leave a large gift to someone you would not ordinarily expect the client to benefit, the lawyer can ask why. With appropriate questioning lawyers can often (not always) ferret out undue influence, and find out what the client really wants.

If an estate planning lawyer has concerns about his or her client’s mental capacity to make a will, or to make a large gift, then a careful lawyer will get the client’s permission to speak with his or her doctor to get further insight.

Lawyers can and do refuse to draw wills or handle transactions for people who are not competent, or who do not appear to be acting freely and voluntarily.

Sadly, vulnerable people are much more likely to be victimized by people who are close to them, than by independent professionals. It is far easier for the unscrupulous to benefit by unduly influencing a vulnerable person to make a homemade will, than when a lawyer is involved in the process, and the lawyer insists on meeting alone with the vulnerable person before the will is drawn.

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