Strange bequests: Was my loved a victim of undue influence?

Technological innovations impact all aspects of life. From keeping up with our favorite shows by streaming them online to checking in with loved ones on social media, the uses are seemingly endless. These uses also impact the legal world. Practitioners are meeting with clients through videoconferences and sharing documents via email. The law has attempted to evolve with technology, to better ensure that those who need protection are safe while still making the most of benefits technology has to offer. One important change when it comes to estate planning is the ability for the remote witnessing of powers of attorney and representation agreements.

Unfortunately, these changes also allow new ways for people to take advantage of others. In a recent example, a man targeted an elderly woman, befriended her, and began cutting her off from her family and friends. During this time, he manipulated her into adding him onto her investment accounts and adding him as a joint tenant on her property. He even moved the woman into a hotel so family could not find her. Her family was able to rescue the woman and moved forward with a claim for undue influence against the man. The judge reviewed the case and agreed with the family. The judge ordered the man to return the $1.2 million property and pay punitive damages of $50,000, noting that the award would have been larger but for the defendant’s “modest” means.

The case serves as warning for families to keep watch over loved ones as technology has made it easier to amend one’s assets (ex. bank accounts, real property) and estate plans. It also provides an opportunity to discuss the impact of undue influence on family estates.

Undue influence defined

Undue influence is the act of imposing pressure on another in a way that causes a legally significant act, such as adjusting a will or granting a gift, that does not reflect the owner’s intentions but rather those of the influencer. A gift is valid if it is the result of “full, free and informed thought” of the individual granting the gift. Any act that interferes with this free will could qualify as undue influence.

The law notes that undue influence is separate from diminished capacity. Although the two may be present in the same case, diminished capacity is not needed to move forward with successful undue influence case. An individual can be the victim of undue influence and not suffer from diminished capacity.

Undue influence also expands beyond wills. It can also come into play involving powers of attorney and gifts.

Red flags

There are certain things that can indicate the possibility of undue influence. Although a single red flag is not indicative of a problem, multiple indicators could warrant the need for further examination. Examples can include:

• The presence of a confidential or fiduciary relationship with another individual
• A gift or bequest that provides a disproportionate benefit to a single individual
• A suddenly overly helpful neighbor or friend
• A growing dependence on a single individual
• Physical signs of concern such as unexplained bruises or untreated injuries
• Growing isolation

These are just a few signs to watch out for that can signal the potential for undue influence.

Evidence of undue influence

If you suspect a gift or bequest was the result of undue influence it is important to carefully review the relationship between the two parties. If the gift giver is dependent on the individual receiving the gift, the court will generally presume that undue influence was present. This could include a caregiver type of relationship. In these situations, the court will likely require the individual who receives the gift to rebut this presumption. The individual could argue that the gift giver received or had the chance to receive independent legal advice before making the bequest or that they knew and appreciated what they were doing at the time they made the gift. Even so, the court will examine the circumstances when coming to its decision.

The law is evolving

As noted above, the law changes over time. Although the ability to remotely sign and witness documents was catalyzed by the pandemic, these changes remain in effect. They will likely continue to be a part of our legal workings as a way to stay current in an increasingly digitized world. Those who believe that their loved one may be the victim of undue influence, through the use of technology or otherwise, are wise to review their loved one’s new estate planning to make sure they understand how the law could impact their situation.

Victims of undue influence have options. You can seek legal action to better ensure that your loved one’s wishes are met. An experienced wills and estates lawyer in Surrey, BC, can review your case and discuss these options. Legal remedies can include a return of property and assets taken through undue influence, as well as additional punitive damages meant to help make your family whole and serve as further punishment for the wrongdoing.