Monday, January 09, 2012

British Columbia Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide

The British Columbia Law Institute has published “Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide.

The impetus for this Guide is a change to the legislation in British Columbia that will come into effect when the new Wills, Estates and Succession Act is brought into force. Section 52 of the new Act will shift the burden of proof when a claim is made that a will has been procured by undue influence in some circumstances. Under the common law in British Columbia, the burden of proof was on the person alleging that the will was procured by undue influence. When the new legislation comes into effect, if the challenger can establish that the person whom is alleged to have procured the will or a provision in the will by undue influence was in “a position where the potential for dependence or domination of the will-maker was present,” then the onus will be on the person defending the will from the allegation of undue influence to establish “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.”

As set out in the Executive Summary, the aim of the Guide is to:

• raise awareness of undue influence as a potential cause of estate litigation and invalidity of a will; 
• assist will drafters to recognize red flags of undue influence;
• enable will drafters to interact tactfully but effectively with will-makers to elicit information necessary for them to properly assess the will-makers’ individual situations and ability to act independently; and
• insulate wills they prepare against successful challenges based on undue influence.
The Guide is divided into five chapters. Chapter I sets out the background including a discussion of practitioners’ responsibilities of vigilance in respect of undue influence. Chapter II contains a summary of the law of undue influence, including leading authorities in British Columbia as well as other jurisdictions. Chapter III has a discussion of how undue influence operates in fact, and includes models developed by psychologists and other researchers to describe the dynamics of undue influence. Chapter III also sets out three undue influence scenarios as illustrations of the kinds of fact patterns practitioners may encounter. Chapter IV outlines various “red flags” to assist practitioners in identifying when further inquiry into the potential for undue influence may be warranted. Chapter V provides recommended practices in screening for undue influence.

Chapter IV of the Guide identifies an extensive list of “red flags,” which are subdivided into categories relating to:

“Someone in whom the will-maker invests significant trust and confidence is – or is connected to – a beneficiary”

“Physical, psychological and behavioural characteristics of the will-maker”

“Isolation resulting in dependence on another person to meet physical, emotional, financial, and other needs”

“Circumstances relating to the making of the will and the terms of the will”

“Characteristics of influencer in testator’s family or circle of acquaintances”

“One’s ‘gut feeling’ that undue influence is going on.”

The authors of the Guide indicate that a single “red flag,” may not be significant. The likelihood of undue influence increases with the number of risk factors.

Chapter V sets out the basic rule that the will-maker should be interviewed alone, without any interested parties present, and explanations that a practitioner may give to a person who accompanies the will-maker to the appointment on why the practitioner needs to meet alone with the will-maker. This is followed by a discussion of open-ended questions the practitioner may ask if “red flags” are present, as well as some specific questions probing the relationship between the will-maker and others who may be in a position where there is the potential for dependence or dominance, and probing whether the will-maker may be a victim in other contexts. The report contains a discussion of obtaining information from third parties, including the will-maker’s physician, and the types of notes and records the practitioner should make and keep irrespective of whether the practitioner drafts a will, or declines to do so.

The Guide concludes that if the index of suspicion of undue influence remains high after the practitioner has done a reasonable investigation, the practitioner should decline to draft the will.

The Guide was prepared by a multi-disciplinary project committee comprised of professionals from the fields of medicine and social work, as well as notaries public and lawyers. The project committee was chaired by D. Peter Ramsay Q.C. and the project manager was Greg Blue Q.C.

I had the privilege of being a member of the committee.

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