Undue influence claims are more likely successful under WESA
Prior to the WESA coming into effect, it was extremely difficult to successfully challenge the validity of the Will on the grounds of undue influence. The burden of proof was on the person challenging the Will and they would potentially have to pay special costs if they failed in proving any such fraud.
However, under Section 52 of WESA, the onus of disproving undue influence has shifted to the person who has received the gift under the Will:
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.
Thus, once a relationship of dependence on another person is established, the party asserting the validity of the Will then has to prove that he or she did not exercise undue influence. Section 52 therefore allows for a greater number of cases alleging undue influence to be successful.
A further effect of Section 52 is that lawyers who are drafting wills must be especially aware of potential concerns at the time of making a Will that could include:
- A caregiver of the will-maker is a beneficiary or is connected to a beneficiary;
- Instructions that seem out of character in light of the will-maker’s family circumstances;
- Physical or mental health issues that may lead to the will-maker being more susceptible to being taken advantage of;
- Preparation or execution of the Will is kept a secret and the will-maker wants the process completed in haste without informing any family members; and
- Significant and poorly explained changes from a prior Will.
In summary, undue influence claims are more likely successful under WESA.
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