Signs of Undue Influence in Estate Planning: How S.52 of the WESA Protects Vulnerable People
Imagine an elderly parent who has always treated their children equally. Suddenly, that parent changes their will so that one child receives almost everything, while the others are cut out. The decision comes after the favoured child begins managing the parents’ banking, driving them to appointments, and limiting access from the rest of the family. When the parent passes away, the other children wonder: was this truly their parent’s choice, or was the parent pressured into it?
This is the type of situation that raises questions of undue influence. In British Columbia, the Wills, Estates and Succession Act (WESA) provides protection against undue influence by placing legal limits on how wills can be made, and by shifting the burden of proof in suspicious circumstances.
What WESA Says About Undue Influence
The key provision is Section 52 of WESA. It states:
52 In a proceeding, if a person claims that a will or any provision of it resulted from another person
being in a position where the potential for dependence or domination of the will-maker was present, and
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.
In simpler terms, if you claim a will is invalid because of undue influence, you must prove it. If the challenger alleges undue influence and shows the beneficiary was in a position of dependence or domination, the burden shifts to the beneficiary to prove the will was made freely as examined in the case of Modonese v. Delac Estate, 2011 BCSC 82 (CanLII). This burden-shifting rule is designed to protect vulnerable individuals from exploitation by those who control or dominate their lives.
What Counts as Undue Influence
Undue influence is not the same as ordinary persuasion or advice. Family members often talk about inheritances and try to convince one another of certain decisions. That is normal and not automatically improper.
Undue influence arises when the pressure goes so far that the will-maker’s free will is overpowered. The key question is whether the document reflects the will-maker’s true intentions, or the intentions of the person pressuring them.
Common Signs the Courts Look For
Courts in BC, applying WESA and case law, often examine the surrounding circumstances for red flags such as:
Sudden or unexplained changes to a long-standing will
Isolation of the will-maker from other relatives and friends
Unusual gifts or disproportionate benefit to one person, especially a caregiver
Exclusion of expected beneficiaries, such as other children or close relatives
The will-maker showing fear, confusion, or hesitation when discussing their estate plan
Heavy dependence on one individual for housing, finances, transportation, or personal care
None of these factors alone proves undue influence, but when several appear together, courts may be more likely to find it.
Case Law Example and a Simple Illustration
Courts closely scrutinise suspicious situations, as illustrated in the case of Cowper-Smith v. Morgan, 2017 SCC 61, where a trial judge, later upheld on appeal, found that a daughter who controlled her elderly mother’s finances and living arrangements had exercised undue influence.
To illustrate how this works in practice, consider the hypthethical of Mary, an 85-year-old widow who depends entirely on her son, Tom, to manage her daily activities. He drives her to doctor's appointments, pays her bills, and screens her phone calls. A year before her death, Mary signed a new will, leaving everything to Tom and excluding her two daughters, who had always been included in her previous will. After Mary’s death, the daughters challenge the validity of the will. Because Tom held a position of dependence and control over Mary, Section 52 of WESA requires him to prove that her decision was made freely and voluntarily. If he cannot demonstrate this, the court may invalidate the will.
Practical Steps to Reduce Risk
For families and will-makers, several simple measures can help avoid disputes:
Independent legal advice: A lawyer should meet privately with the will-maker to confirm that decisions are voluntary.
Transparent communication: Discuss estate planning openly with close family to prevent suspicions later.
Avoid secrecy: Be wary if one person is controlling access to the will-maker or managing all communications.
Regularly update wills: Life changes such as divorce, remarriage, or the arrival of grandchildren are good moments to review and adjust.
Written notes: Keep records of discussions with the lawyer and the reasons behind major estate decisions.
Frequently Asked Questions
Does every gift to a caregiver mean undue influence?
No. Caregivers can inherit. The law only steps in when the gift appears suspicious or when the caregiver cannot show that the will-maker acted freely.
Who has the burden of proof in court?
Normally the challenger must prove undue influence. But under Section 52 of WESA, if the beneficiary was in a position of trust or dependence, the burden shifts to them to prove the will was made freely.
Is undue influence the same as lack of capacity?
No. Capacity is about whether the person understood what they were signing. Undue influence is about whether someone else pressured them into signing it. They are separate issues, though both can arise in estate disputes.
Can family disagreements alone show undue influence?
Not necessarily. Families often disagree about fairness. What matters is whether the will-maker’s free will was overpowered.
Key Takeaways
Undue influence occurs when pressure overcomes a will-maker’s free will.
Section 52 of WESA protects vulnerable people by shifting the burden of proof in certain relationships.
Warning signs include isolation, sudden changes, and unusual benefits to one person.
Courts apply this rule strictly, as seen in Cowper-Smith v. Morgan (2017 SCC 61).
Independent advice and transparent planning are the best safeguards against future disputes.
Need Advice?
If you are worried that a loved one was pressured into changing their will, or if you want to ensure that your own estate plan cannot be challenged, book a consultation with Parr Business Law. Our estate lawyers can review your circumstances, explain how WESA Section 52 applies, and help you protect your wishes and your legacy.
Sources
AI Statement: OpenAI’s language tools and Grammarly were used to generate synonyms, correct grammatical issues, and adjust sentence structure, ensuring greater clarity for the reader.
Modonese v. Delac Estate, 2011 BCSC 82 (CanLII).
Wills, Estates and Succession Act, SBC 2009, c 13, s. 52
Cowper-Smith v. Morgan, 2017 SCC 61 (CanLII) - https://www.canlii.org/en/ca/scc/doc/2017/2017scc61/2017scc61.html
