Wills and Undue Influence

In the recent case of Trudeau v Turpin, 2019 BCSC 150, the Supreme Court of British Columbia considered the concept of undue influence and the application of section 52 of the British Columbia Wills, Estates and Succession Act. “Undue influence” refers to a situation where a will-maker has been improperly influenced such that the Will does not reflect the will-maker’s genuine intention. Section 52 of WESA considers a situation where another person commences an action claiming that a Will results from the undue influence of another person. If the claim suggests that a person:

 

• was in a position with respect to the deceased person where there was the potential for dependence or domination; and
• that the person used that position to improperly influence the will-maker.

 

the party alleging undue influence must only prove that the person allegedly exerting undue influence was in a position where the potential for dependence or domination of the will-maker was present. Once this is established, the party seeking to defend the Will must prove that the Will was not created as a result of the undue influence of that person.

 

 

The Facts of the Case

 

In this case, the will-maker was particularly close with one of her four daughters and in her Will left:

 

• 60% of her estate to that daughter;
• 30% to another daughter; and
• 5% each to the last two daughters.

 

The other daughters argued that by virtue of the strength of the relationship between their mother and the favoured daughter and the fact that the mother was dependent on her, the Will was a product of undue influence. The Court considered section 52 of WESA and ultimately found that the other daughters failed to establish that the favoured daughter was in a position where the potential for dependence or domination was present. The Court further stated that, regardless of section 52 of WESA, the evidence did not suggest that the favoured daughter exerted any undue influence.

 

In particular, the Court noted that:

 

• the favoured daughter never exhibited aggressive or suggestive behaviour;
• the will-maker had a journal that had confirmed her wishes as early as 1996 (and continued to express a desire to change her Will to reflect these wishes);
• there was evidence that the will-maker had a dominating personality with her children, including the favoured daughter;
• the daughter’s demeanor suggested she was not capable of exerting undue influence;
• when her mother made an earlier Will, the favoured daughter convinced her mother to distribute her estate equally between her children;
• the will-maker met privately with her lawyer; and
• the experienced lawyer had no concerns that there was any undue influence present when the will-maker made the Will.