BRITISH COLUMBIA LAW INSTITUTE
BCLI Updates the Undue Influence Recognition/Prevention Recommended Practices Guide
T
he BC Law Institute (BCLI) publication “Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide” (the “BCLI Guide”) is undoubtedly familiar to many Scrivener readers. The Society of Notaries Public website lists the guide as an educational resource in the members’ section, and it is used in teaching notarial candidates in the Master of Arts in Applied Legal Studies Program at SFU. The Notary Foundation funded the development of the BCLI Guide. With funding from The Notary Foundation, BCLI is updating this well-received and widely used publication to ensure it remains a useful resource for legal practitioners.
The practices described in the BCLI Guide for recognizing telltale signs of undue influence and preventing it from tainting a Will are equally applicable when taking instructions and drafting other Personal Planning documents such as Powers of Attorney and Representation Agreements.
There is a chapter explaining the law of testamentary undue influence, and another detailing the ways in which in which undue influence is typically exerted. A checklist and flowchart illustrating best practices are included in an appendix to the BCLI Guide and also published separately as the Section 52 was expected “Undue Influence Recognition/ Prevention Reference Aid.” to lead to more Wills being
challenged on the ground of undue influence, and possibly result in more challenges...
The BCLI Guide explains “red flags” that should raise a practitioner’s level of suspicion that Will instructions being given may not represent the client’s true wishes because the client is under some form of coercive pressure. It recommends practices that Willdrafters should follow to guard against giving effect unwittingly to the designs of an influencer, and ensure to the greatest extent possible that the Wills they draft could withstand challenge on the basis of undue influence. Volume 30, Number 3, Winter 2021
Gregory G. Blue
Section 52 of Wills, Estates and Succession Act (WESA) was the impetus for the original version. It shifts the onus of proof from the challenger to the defender of a Will or a Will provision if it is alleged that the Will or provision came into being as a result of undue influence exerted on the Will-maker resulting from a relationship of dependency or domination, and the challenger establishes that such a relationship existed. Section 52 was expected to lead to more Wills being challenged on the ground of undue influence, and possibly result in more challenges of that kind succeeding. The BCLI Guide was intended to aid practitioners to detect undue influence where it exists, and insulate the Wills they draft against challenge on grounds of undue influence where there is none.
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