WESA introduced a shift in the onus of proof in relation to undue influence challenges to wills in some cases.
Section 52 of WESA places the onus of disproving undue influence to the person who has received the gift under the will where a position of domination and dependence existed between the will-maker and the beneficiary.
Pre-WESA, the onus of proving undue influence fell to the challenger of the will. This onus made proving undue influence extremely difficult considering the will-maker was obviously already deceased, and thus not able to recount the events surrounding the making of his/her gift, and the third party who received the gift was under no obligation, and certainly had no incentive, to truthfully tell the facts surrounding how/when the gift was made to him/her and the circumstances surrounding the giving of the gift.
Undue influence by its very nature, usually takes place away from witnesses, potentially in the context of elder abuse, making it extremely difficult to prove. Usually the only people present are the will-maker and the influencer. The case would not even have been as good as “he said, she said” because one of the voices has already been silenced by death. The shift in onus of proof, courtesy of WESA, is certainly a very welcome change for plaintiffs.
Understandably, this shift in onus of proof may result in an increase in undue influence challenges to wills. Thus, lawyers taking instructions for wills, or updates for wills/codicils need to be cognizant of this change and extremely careful to satisfy themselves that no undue influence is present and take very detailed notes to file, to ensure that if they are called upon as witnesses in an undue influence case, they can provide an accurate summary of their meetings with the will-maker.
This information applies as a general rule but may change depending upon the specific circumstances of your own situation. You should consult a lawyer before acting on any of this information. If you have any questions, please do not hesitate to contact Vanessa DeDominicis directly on 250-869-1140 or [email protected].
