Hix v. Ewachniuk

In June, the British Columbia Court of Appeal upheld a trial decision that a former lawyer, Alexander Theodore Ewachniuk exercised undue influence over his mother to procure a will in which she effectively left him her estate to the exclusion of her other children. The case is Hix v. Ewachniuk, 2010 BCCA 317.

Mr. Ewachniuk drew a will for his mother, Sophia Ewachniuk, which she signed in January 2004. In the will she appointed Mr. Ewachniuk as her executor. She gave him and his two sisters each one-third of her estate on condition that Mr. Ewachniuk’s sisters transfer their shares in a family business to Mr. Ewachniuk. Otherwise, each of Mr. Ewachniuk’s sisters would receive $5000, and the rest of the estate would go to Mr. Ewachniuk. The sister’s shares were worth more than what they would receive out of the estate if they gave Mr. Ewachniuk’s their shares.

Mr. Ewachniuk’s sisters, Neeva Gayle Hix and Marry Anne Runnalls sued their brother, alleging that the will is invalid because he procured it through the exercise of undue influence. Sophia Ewachniuk’s previous will had left her estate to be divided equally among her children, without any requirement that her daughters transfer their shares in the family business to their brother.

Claims that a will is procured through undue influence in British Columbia can be difficult to prove. The burden of proof is on the person alleging undue influence (although new legislation will modify this presumption where the person benefiting was in a position to dominate the will maker; see section 52, Wills, Estates and Succession Act, which is not yet in effect as of the date of this post). There are rarely independent witnesses to the exercise of undue influence, and the person exercising such influence is not too likely to admit it.

But in Hix v. Ewachniuk, the court found sufficient circumstantial evidence of undue influence to make a finding that Mr. Ewachniuk did unduly influence his mother. Mr. Justice Lowry in the Court of Appeal wrote at paragraphs 21 and 22:

[21] The new will was drawn by Mr. Ewachniuk. By it, he stood to receive the whole of his mother’s estate while his sisters received virtually none, unless they both agreed to give to him shares worth remarkably more in value than what they would receive from the estate. Ms. Ewachniuk had become vulnerable and depen¬dent on her son for all aspects of her life. He was clearly in a position to influence her, it would certainly have served his interests to do so, and, as the judge found, he has an aggressive and domineering personality. He did not have his mother consult a solicitor as, in the circumstances, he would have known was essential. As between Mr. Ewachniuk and his sisters, only Mr. Ewachniuk knew anything about their mother changing her will. She had never asked her daughters to give up their shares in Regent, but she changed her will to require them to do just that if they were to have any share of her estate, even though there is no reason they could have been expected to exercise the “option” the will affords them in that regard.

[22] Once Mr. Ewachniuk’s evidence is put to one side, it appears to me the judge was entitled to conclude the most probable explanation for Ms. Ewachniuk changing her will to effectively leave to her son the whole of her estate is that he must have unduly influenced her to do so. It is said there is no evidence Mr. Ewachniuk ever attempted to take unfair advantage of his mother before and no evidence that she complained to her daughters or anyone else that she was being made to change her will when she did not want to do so. But then the arrangement between Ms. Ewachniuk and her son was that the change was to be kept a secret. In my view, there is little basis in the evidence on which it could be concluded that an equally plausible explanation for Ms. Ewachniuk executing the new will in January 2004 lay in her having decided, apparently without being prompted by anything happening in the later part of 2003 apart from discussions with her son, to favour him over her daughters so much that she changed her will to benefit him and deprive them to the extent to which the will provides.