Using A Relationship To Benefit From Someone’s Estate
When preparing our wills we never imagine that there is the possibility that disputes in administering them arise. However it is not uncommon for certain external factors to lead to conflict. For example, sometimes a person may not have the requisite capacity to create a will. Further, an individual may experience coercion, or undue influence, leading to drafting a certain clause in their will or even the will itself. In these unfortunate circumstances it may be necessary to bring an application in court to dispute the validity of the will. While will challenges are common, they are not always successful. This stems from the limited grounds on which the Courts accept these challenges on.
If you or a family member suspect that a loved one experienced undue influence when drafting their will, call us today. Our Calgary, Alberta office represents both the estate or beneficiaries fighting undue influence, as well as individuals claiming undue influence occurred. Kahane Law Office has experienced estate litigators who deal with wills and estates related legal challenges.
What Grounds Apply To Challenge A Will?
The Court uses available legal grounds to challenge a will based on the common law (case law) or legislation. Limited grounds exist for these types of challenges. For example, the available grounds to challenge a will include:
- Undue Influence
- Lack of mental capacity
- Technical problems with the will itself (ex: if the will does not meet the legal requirements for a valid will in Alberta)
- If a spouse or dependent lack adequate bequests to care for them in the will, and lastly
- If the will was forged or fraudulently drafted
Please continue reading below to learn more about the accepted ground of undue influence in challenging a will.
What is Undue Influence?
Undue influence occurs when the person drafting the will (referred to in law as the testator) is coerced by another person into making changes to their will. Alternatively, it involves undue influence when the person drafts their will in the first place. The result is the will lacks the actual reflection of the true intentions of the testator.
When mentally picturing undue influence individuals tend to automatically think of the “gun to the head” scenario. However, many other less obvious scenarios also exist. Undue influence is the improper use of power by one person over another to induce an outcome. In the context of creating a will undue influence is control over the person drafting the will to the extent that the drafter cannot act voluntarily and would not have drafted (or revised) the will if the control had never been exercised.
Factors That Demonstrate Undue Influence
There are certain key factors that are warning signs of potential undue influence. For example, these factors include situations where the testator:
- Has experienced recent family conflict;
- Lives in social isolation;
- Has experienced recent bereavement;
- Is dependent on the beneficiary for emotional and physical needs;
- Has made a new will not consistent with prior wills; and lastly
- Made testamentary changes simultaneously with changes to other legal documents such as powers of attorney.
In determining whether a will drafting reflects undue influence the court takes into account various factors. For example, these factors include dramatic sudden changes to the will, the vulnerability of the testator, and the circumstances or access of the person accused to the testator. In addition, the court looks at the circumstances of the drafting and execution of the new will.
Proving Undue Influence
Firstly, proving undue influence is a very difficult legal burden to discharge. This means that the person challenging the will has a lot to prove for a successful claim. Difficulty exists for applicants to find evidence to support the assertion that a will, or a clause within a will, occurred under duress. Often the person with the best personal evidence of whether there was undue influence or not is the person or persons being accused, and such persons can often be in the position to present the facts in a potentially misleading manner. That said, circumstances exist where such a legal will challenge makes sense. Individuals considering pursuing such a will challenge should consider the individual circumstances of their case and consult with a lawyer before making a decision.
Proving undue influence requires demonstrating the testator experienced coercion, physically or mentally, by another to make a will or change to a will. One must look at all of the surrounding circumstances and determine whether or not a testator had the ability to draft or revise the Will to reflect their wishes, despite the existence of any outside influence. It is important to note that influence on its own is insufficient to prove undue influence.
Court Considerations For Undue Influence
The Courts ask certain questions about the drafting of a will or term in a will to determine undue influence. For example, the courts asks the following to see if undue influence impacted a will’s contents:
- What is the relationship between the parties (ie: the person drafting the will and the person accused of exerting undue influence),
- Does the potential for domination exist in the relationship between the parties. For example, a parent/child relationship or other relationship of dependency,
- An opportunity existed for the person accused to exert undue influence. For example, by being responsible for taking the testator to doctors appointments etc. It is important to note that this alone is not sufficient to prove undue influence, but is simply one of the factors; and lastly
- Was coercion present.
In assessing the above steps the court will pay particular attention to the assessment and credibility of the evidence. For example, if there is credible evidence illustrating the testator had capacity then undue influence is unlikely to be found. That being said, it is important to note that capacity, the mental ability to write a will, is different from a finding of undue influence. It is not necessary that a testator have lost capacity to prove that they were unduly influenced. For example, it is possible that someone understands their actions when drafting a will without realizing that emotional manipulation motivated them into doing it.
Getting Legal Help When With Estate Challenges
If you suspect that someone in your life has experienced undue influence, it is important to reach out to a lawyer. The lawyer helps to assess the particular details of the circumstance. If someone accused you of making someone change their will, you also need a lawyer. The wills and estates lawyers at Kahane Law Office answer questions with respect to estate challenges. We help in determining whether a loved experienced unduly influenced. Further, we help determine if a strong case exists for a court challenge. For the help you need, the best and fastest way to reach us is by email. This allows you to share some of the details of your case. It also allows us to get back you with information and any further requirements. Please email our estate litigation lawyers here. Alternatively, please call us at our Calgary, Alberta office at 403-225-8810.