BC Notaries Annual Spring Conference

April 21 and 22, 2012

Potential U Undue Influence

D. Peter Ramsay, Q.C.Ramsay Lampman RhodesNanaimo, BC

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Undue Influence

Sets aside transfers for money or gifts Sets aside Wills or part of a Will Elderly susceptible WESA s. 52

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Background

British Columbia Law Institute• Multidisciplinary project committee• Report: “Recommended Practices of

Wills Practitioners Relating to Potential Undue Influence: A Guide” Online at BCLI Website www.beli.org Guide 45 pages Reference Aid 4 pages

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Which Statement Best Describes

...Undue Influence in Relation to Making a Will?

A. Actual violence or forcible confinementB. Any pressure put on a Will-maker

to leave a gift to someoneC. Circumstances such that the Will does

not express the independent wishes of the Will-maker

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I Clicker

A B C

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The Practical Problem

How does someone who wants to challenge a Will or part of a Will

on the grounds of undue influence prove the undue influence?

Present law: The challenger must prove undue influence.

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WESA s. 52...

If a person claims a Will or provision in a Will resulted from another person,a) being in a position where there was

potential for dependence or domination, and

b) Using the position to unduly influence the Will-maker

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...WESA s. 52

Establishesthe other person was in a position where the potential for dependence or domination was present

Thenthe Person defending Will or gift in the Will must show no undue influence.

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Show a Relationship

undue influence presumed must be disproved

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Result

1. More challenges to Wills or gifts in a Will2. Will-drafter (Notary/lawyer) more likely

called as a witness3. Need to look even more carefully

for “red flags.”4. Keep thorough and complete notes.

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B.C.L.I. Reference Aid

2 Parts

Check list Red flags

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Checklist...

1. Interview Will-maker alone (Basic Rule).2. Ask non-leading, open-ended questions

to determine factors operating on Will-maker’s mind.

3. Explore whether Will-maker is in a relationship of dependency, domination, or special confidence or trust.

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...Checklist...

4. Explore whether Will-maker is a victim of abuse or neglect in other contexts.

5. Obtain relevant information from third parties when possible and if the Will-maker consents.

6. Obtain medical assessment if mental capability is also in question, but remember that mental capacity to make a Will is ultimately a legal test.

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...Checklist

7. Compile list of events or circumstances indicating undue influence.

8. Make and retain appropriate records whenever red flags are present.

9. If Index of Suspicion remains high after reasonable investigation, decline retainer to prepare the Will.

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Red Flags...

1. Will-maker investing significant trust and confidence in a person who is a beneficiary or who is connected to a beneficiary (e.g., lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor,” or partner)

2. Isolation of Will-maker resulting in dependence on another for physical, emotional, financial , or other needs

3. Physical, psychological, and behavioural characteristics of Will-maker

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...Red Flags

4. Circumstances related to making of the Will and/or the terms

5. Characteristics of influencer in Will-maker’s family or circle

of acquaintance6. Practitioner’s “gut feeling”

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Undue Influence

D. Peter Ramsay, Q.C.Ramsay Lampman RhodesNanaimo, BC