The British Columbia Law Institute has published Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide, which can be downloaded as a PDF here.

The impetus for this Guide is a change to the legislation in British Columbia that will come into effect when the new Wills, Estates and Succession Act, SBC 2009, c 13 ("WESA") is brought into force. [The third reading version of WESA (Bill 4) is viewable through the BC Legislative Assembly website and should be read side by side with the Wills, Estates and Succession Amendment Act, SBC 2001, c 6 which has amended WESA even prior to it coming into force.]

Section 52 of the new WESA will shift the burden of proof when a claim is made that a will has been procured by undue influence in some circumstances. Under the common law in British Columbia, the burden of proof was on the person alleging that the will was procured by undue influence. When the new legislation comes into effect, if the challenger can establish that the person whom is alleged to have procured the will or a provision in the will by undue influence was in “a position where the potential for dependence or domination of the will-maker was present,” then the onus will be on the person defending the will from the allegation of undue influence to establish “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.”

As set out in the Executive Summary, the aim of the Guide is to:

• raise awareness of undue influence as a potential cause of estate litigation and invalidity of a will;
• assist will drafters to recognize red flags of undue influence;
• enable will drafters to interact tactfully but effectively with will-makers to elicit information necessary for them to properly assess the will-makers’ individual situations and ability to act independently; and
• insulate wills they prepare against successful challenges based on undue influence.

An Overview of the Guide's Chapters

The Guide is divided into five chapters. Chapter I sets out the background including a discussion of practitioners’ responsibilities of vigilance in respect of undue influence. Chapter II contains a summary of the law of undue influence, including leading authorities in British Columbia as well as other jurisdictions. Chapter III has a discussion of how undue influence operates in fact, and includes models developed by psychologists and other researchers to describe the dynamics of undue influence. Chapter III also sets out three undue influence scenarios as illustrations of the kinds of fact patterns practitioners may encounter. Chapter IV outlines various “red flags” to assist practitioners in identifying when further inquiry into the potential for undue influence may be warranted. Chapter V provides recommended practices in screening for undue influence.

Red Flags for Undue Influence

Chapter IV of the Guide identifies an extensive list of “red flags,” which are subdivided into categories relating to:

• “Someone in whom the will-maker invests significant trust and confidence is – or is connected to – a beneficiary”
• “Physical, psychological and behavioural characteristics of the will-maker”
• “Isolation resulting in dependence on another person to meet physical, emotional, financial, and other needs”
• “Circumstances relating to the making of the will and the terms of the will”
• “Characteristics of influencer in testator’s family or circle of acquaintances”
• “One’s ‘gut feeling’ that undue influence is going on.”

The authors of the Guide indicate that a single “red flag,” may not be significant. The likelihood of undue influence increases with the number of risk factors.

Recommended Practices for Interviewing the Testator

Chapter V sets out the basic rule that the will-maker should be interviewed alone, without any interested parties present, and gives explanations that a practitioner may give to a person who accompanies the will-maker to the appointment on why the practitioner needs to meet alone with the will-maker. This is followed by a discussion of open-ended questions the practitioner may ask if “red flags” are present, as well as some specific questions probing the relationship between the will-maker and others who may be in a position where there is the potential for dependence or dominance, and probing whether the will-maker may be a victim in other contexts. The report contains a discussion of obtaining information from third parties, including the will-maker’s physician, and the types of notes and records the practitioner should make and keep irrespective of whether the practitioner drafts a will, or declines to do so.

The Guide concludes that if the index of suspicion of undue influence remains high after the practitioner has done a reasonable investigation, the practitioner should decline to draft the will.

The Guide was prepared by a multi-disciplinary project committee comprised of professionals from the fields of medicine and social work, as well as notaries public and lawyers. The project committee was chaired by D. Peter Ramsay Q.C. and the project manager was Greg Blue Q.C.

You will be able to find the Guide on the British Columbia Law Institute’s website: http://www.bcli.org/sites/default/files/undue%20influence_guide.pdf 

Six years ago I was on a quest to build a more successful and specialized wills and estates practice. I had heard Dave Bilinsky, practice advisor with the Law Society of British Columbia, give a presentation on marketing so I met with him in a Richmond coffee shop.

After questioning me about my practice, goals, strengths and weaknesses, Dave asked me, “Why don’t you start a blog?” To which I replied, “What’s a blog?”

I took away two main things from my meeting with Dave that afternoon, one of which was this idea of starting a blog, whatever that might be.

Before I started writing, I started reading. Dave gave me the names of some blogs done by his US counterparts (Dave would later start his own widely-read practice management blog, Thoughtful Legal Management). I also found a handful that focused on my practice area. Six years ago, there were perhaps four or five wills and estates blogs, all of them written by lawyers in the US.

A few months later, in August, 2006, I started my own blog, “Rule of Law,” using a free Blogger platform. I started writing. I found a free site meter, showing the number of times people looked at the blog, and I checked it daily at first.

One day I got eight hits, which I was quite happy about—until I found out about the “ignore your own visits” function, five of those hits having been my own. 

I have added 587 more posts since August 2006. My site meter now says I get anywhere from 7,300 to over 11,000 hits per month.

The number of wills and estates blogs out there has also grown exponentially. I link to 40 on my sidebar, with selected Canadian blogs searchable using a custom Google search tool on my site, and there are many more wills and estate blogs that I have not yet added.

Blogging is a very effective form of marketing. People who never heard of you find you searching keywords matching topics you wrote about. Try googling “BC wills variation act.” The blogs market themselves, and I hear from prospective clients, plus referrals from other lawyers and financial planners, on account of it.

My blog is more to me than a marketing tool, however.

It allows me to step back from my day-to-day practice to think about the law. Writing regularly helps me to keep on top of developments.

In addition to writing for my own blog, I continue to read and learn from other blogs, which brings me to the new Practice Portals and The Stream.

I am excited about BC Courthouse Libraries’ venture into practice area blogs where multiple lawyers will contribute to each practice area. The advantage to this approach is that readers will get a variety of different perspectives. It will help practitioners and others interested in the law keep abreast of developments. It will be valuable as a research tool for lawyers.

The new Courthouse Library Society’s Practice Portals will also give practitioners curious about blogging an opportunity to write, teach others, and demonstrate their competence through what I expect will be a well-followed blog.

Oh, in case you thought I was going to forget. The other main thing I took away from my meeting with Dave Bilinsky six years ago: a taste for caramel macchiatos.