A Practical Guide To Challenging A Will Due To Undue Influence Or Fraudulent Calumny

Every week we read in newspapers and news websites of cases where disappointed beneficiaries are in dispute with others, often members of their own families, about an estate that they expected to benefit from. These challenges often include claims that the person who does receive the benefit from the estate 'unduly influenced' the deceased or that they poured poison about the disappointed beneficiary into the ear of the deceased - which is what is referred to as fraudulent calumny. A Practical Guide to Challenging a Will Due to Undue Influence or Fraudulent Calumny explains what 'undue influence' and what 'fraudulent calumny' are and sets out the framework for challenges to wills where there is such a claim. It also guides the reader through some of the practical issues and difficulties that any disappointed beneficiary may face when making such challenges. These claims are difficult to pursue as they are treated by the courts as being similar to a fraud claim and the guide will be an essential tool for anyone contemplating making or defending such a challenge to a will (whether a lawyer, other professional person, or a beneficiary). ABOUT THE AUTHOR Evan Price is a barrister with over 20 years' experience of disputes involving property, wills, trusts and estates. He practices from Ten Old Square in Lincoln's Inn and is a member of the STEP (the Society of Trusts and Estates Practitioners). He is regularly instructed to assist clients to resolve matters involving broad and knotty issues that require urgent assistance.

Legal practitioners who prepare wills now take care to be satisfied that the will instructions represent the independent wishes of their clients. A forthcoming change in British Columbia law in section 52 of the Wills, Estates and Succession Act requires some heightened awareness of the possibility of undue influence on the part of wills practitioners. Once the section is in force, the onus of proof in cases where undue influence is alleged will shift to the defender of a will in certain circumstances. This change heightens the need for practitioners to be able to recognize sings ("red flags") pointing to the possibility that a client's independent wishes are being overborne by coercive pressures and to take reasonable steps to prevent, to the extent possible, later challenges on the ground of undue influence and to record those steps. A practitioner should anticipate being called as a witness to rebut the new presumption of undue influence. This guide is intended for the use of legal practitioners who prepare wills. It was developed by an interdisciplinary committee with the support of the notary foundation and the lawyers insurance fund. For background the guide surveys the present state of the law relating to undue influence and explains the evidentiary change that section 52 will bring about. The main purposes of the guide, however, are to assist legal practitioners in recognizing ad dealing with situations of potential undue influence, and to set out some guidelines ("recommended practices") that should help to avert undue-influence challenges. While the focus of the guide is on wills practice, much of its contents are also relevant to the preparation of contracts and other personal-planning documents, such as representation agreements and powers of attorney.

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Part Two. HUMAN RIGHTS