It is common to hear stories of a family member, friend, or caregiver receiving a significant gift in a will seemingly out of the blue. There may be suspicions of manipulation and coercion, but when does a situation rise to the level of invalidating the gift or will altogether?
The recent cases of Stevens v. Esak, 2025 BCSC 331 and Baylis Estate, 2025 BCSC 410, provide a useful overview of the law surrounding undue influence in British Columbia.
What is Undue Influence?
Undue influence occurs when an individual coerces or manipulates someone into making a decision that is not of their own free will. Normally, the influencing person is in a position of power or trust and uses that position to their advantage.
Undue influence can arise in situations where a will is made or changed, or where gifts are made during a person's lifetime.
If undue influence is established, it invalidates the gift entirely. This could result in an entire will being invalid, meaning that a previous will would become effective, or if there is no previous will, the person's estate will be distributed according to the intestacy rules in the Wills, Estates and Succession Act (WESA).
Stevens v. Esak
In the Stevens case, the deceased, Arthur Stevens ("Arthur"), suffered a stroke and also discovered he had terminal cancer in early July 2019. Shortly after being discharged from the hospital, Arthur executed a will that disinherited his son Michael and left his estate to Patricia Esak ("Patricia"), who was Arthur's common law partner. Days before his death, Arthur also transferred his interest in a property to Patricia.
Michael argued, in part, that Patricia unduly influenced Arthur to make the will and to transfer the property to her. The evidence at trial was that Arthur's mental capacity was deteriorating after his hospitalization and that he was completely dependent on Patricia for his care needs.
In the case of a will, section 52 of WESA places the burden on the party seeking to uphold the will to disprove undue influence where they were "in a position where the potential for dependence or domination of the will-maker was present."
Even if the circumstances in section 52 of WESA aren't established, undue influence can still be proven with evidence of influence to the degree that it could not be resisted and in essence destroyed the will-makers "free agency".
With respect to transfers during a person's lifetime, there is a presumption of undue influence where the nature of the relationship shows the potential for dominance. The person seeking to uphold the transfer must prove that the transfer was the product of the transferor's "full, free and informed thought." Many factors are relevant, including lack of opportunity to influence, the receipt of legal advice, the person's ability to resist influence, the person's ability to appreciate their actions.
In Stevens, the Court accepted that Arthur and Patricia's relationship was one where there was a potential for dependence or dominance. Patricia was Arthur's "deathbed caregiver" and he was completely dependent on her. However, the Court determined that the will was not a product of undue influence because the contents of the will were consistent with Arthur and Michael's history, and Patricia did not significantly benefit under the will.
On the other hand, the Court agreed with Michael that Patricia unduly influenced Arthur to execute the property transfer. At the point the transfer was made, Arthur's mental capacity had deteriorated to the point he was incompetent to manage his affairs and he was suffering from hallucinations. The Court determined that Patricia was driving the process and the transfer was not an exercise of Arthur's intentions. The transfer was also void due to lack of capacity on the part of Arthur.
Baylis Estate
In Baylis Estate, the deceased, Carol Baylis ("Carol"), left a will which gave the majority of her estate to her son Julien, provided a small portion to her other son Jeremy, and left nothing to her daughter Claire.
Julien sought to have the will admitted to probate but Claire challenged the will on the basis that Julien unduly influenced Carol and that Carol lacked capacity to create the will. The Court did not make a definitive determination regarding undue influence, but found there was sufficient evidence to require a full trial to decide the issue.
At para. 30, the Court listed some of the issues that could lead to the conclusion that Carol was unduly influenced or lacked capacity:
(a) The Will, as written, provided Julien with 93% of the Deceased's estate;
(b) Julien took steps to isolate Claire from the Deceased prior to the Will being drafted and executed;
(c) Julien took active steps to find Mr. Squair [the lawyer who prepared the will] and attended with her to Mr. Squair's office when instructions were given and when the Will was executed;
(d) The Deceased executed the Will despite it stating that the Apartment was to go to Julien instead of Jeremy as was noted to be the case in the Checklist;
(e) Text messages between the Deceased and Julien suggesting possible pressure being applied to the Deceased regarding the preparation of the Will, including one where the Deceased characterized Julien's treatment of her as abusive;
(f) The lack of explanation for why Julien was receiving the lion's share of the estate, with Jeremy receiving much less and Claire receiving nothing;
(g) The Will being substantially different from the will's Checklist prepared by Mr. Squair in December 2019, wherein it is apparent the estate was to be split equally among the Deceased's three children; and
(h) The apparent undermining of her relationship with the Deceased.
The Court found that Julien was in a position of influence over Carol and that the circumstantial evidence was enough to raise the presumption of undue influence under section 52 of WESA. If the case proceeds to trial, it will be interesting to see how the Court decides the issue of undue influence.
Takeaways
Even if a will was prepared by and executed in the presence of a lawyer, it is possible for the court to invalidate it based on undue influence. It is important to look for evidence of suspicious circumstances, and relationships of dominance, trust, or reliance.
Undue influence is not straightforward – in some cases, like Stevens, a person can be found to have been unduly influenced to make some decisions but not others. In Baylis Estate, the Court relied on a lot of indirect evidence of influence, which can be difficult to present persuasively.
Given the complexity of these cases, it is important to consult with a lawyer if you are concerned that your loved one was unduly influenced.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
