BC Notaries Annual Spring Conference April 21 and 22, 2012

1. BC Notaries Annual Spring ConferenceApril 21 and 22, 2012 Potential U Undue Influence D. Peter Ramsay, Q.C. Ramsay Lampman Rhodes Nanaimo, BC

2. Undue Influence • Sets aside transfers for money or gifts • Sets aside Wills or part of a Will • Elderly susceptible • WESA s. 52

3. Background British Columbia Law Institute • Multidisciplinary project committee • Report: “Recommended Practices of Wills Practitioners Relating to Potential Undue Influence: A Guide” • Online at BCLI Website www.beli.org • Guide 45 pages • Reference Aid 4 pages

4. Which Statement Best Describes ...Undue Influence in Relation to Making a Will? • Actual violence or forcible confinement • Any pressure put on a Will-maker to leave a gift to someone • Circumstances such that the Will does not express the independent wishes of the Will-maker

5. I Clicker

6. The Practical Problem How does someone who wants to challenge a Will or part of a Will on the grounds of undue influence prove the undue influence? Present law: The challenger must prove undue influence.

7. WESA s. 52... If a person claims a Will or provision in a Will resulted from another person, • being in a position where there was potential for dependence or domination, and • Using the position to unduly influence the Will-maker

8. ...WESA s. 52 Establishes the other person was in a position where the potential for dependence or domination was present Then the Person defending Will or gift in the Will must show no undue influence.

9. Show a Relationship  undue influence presumed  must be disproved

10. Result • More challenges to Wills or gifts in a Will • Will-drafter (Notary/lawyer) more likely called as a witness • Need to look even more carefully for “red flags.” • Keep thorough and complete notes.

11. B.C.L.I. Reference Aid 2 Parts  Check list  Red flags

12. Checklist... • Interview Will-maker alone (Basic Rule). • Ask non-leading, open-ended questions to determine factors operating on Will-maker’s mind. • Explore whether Will-maker is in a relationship of dependency, domination, or special confidence or trust.

13. ...Checklist... • Explore whether Will-maker is a victim of abuse or neglect in other contexts. • Obtain relevant information from third parties when possible and if the Will-maker consents. • Obtain medical assessment if mental capability is also in question, but remember that mental capacity to make a Will is ultimately a legal test.

14. ...Checklist • Compile list of events or circumstances indicating undue influence. • Make and retain appropriate records whenever red flags are present. • If Index of Suspicion remains high after reasonable investigation, decline retainer to prepare the Will.

15. Red Flags... • Will-maker investing significant trust and confidence in a person who is a beneficiary or who is connected to a beneficiary (e.g., lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor,” or partner) • Isolation of Will-maker resulting in dependence on another for physical, emotional, financial , or other needs • Physical, psychological, and behavioural characteristics of Will-maker

16. ...Red Flags • Circumstances related to making of the Will and/or the terms • Characteristics of influencer in Will-maker’s family or circle of acquaintance • Practitioner’s “gut feeling”

17. Undue Influence D. Peter Ramsay, Q.C. Ramsay Lampman Rhodes Nanaimo, BC