Undue Influence or Intent to Benefit?
In Modonese v. Delac Estate, 2011 BCSC 82 (CanLII) the deceased left her property to her two children equally in her Will but the bulk of her estate consisted of her house, which was transferred into joint tenancy with her son. The son and his wife and children had always lived with the mother in her home except for a 3-year period after an episode of violence by the son against the deceased. At the end of the day, the son was not a credible witness and the Court accepted evidence that the deceased intended her estate to be shared equally between her son and her daughter.
Mondonese v. Delac Estate contains some useful discussion (below) regarding the “principled approach” to admissibility of hearsay evidence and the factors to be considered in determining whether there was undue influence.
To be admissible, hearsay evidence must be:
a) Necessary – the only available means of putting that evidence before the Court; and
b) Reliable – there is no real concern about the truth of the statement because of the circumstances in which it was made and it can be sufficiently tested by means other than cross examination.
The two instances where the question of undue influence arises are:
a) Where the gift was the result of influence expressly used by the donee for the purpose; and
b) Where the relations between the donor and donee around the time of the gift were such as to raise a presumption that the donee had influence over the donor.
To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own "full, free and informed thought" in that:
a) No actual influence was used or there was no opportunity to influence the donor;
b) The donor had independent legal advice or the opportunity to obtain it;
c) The donor had the ability to resist any such influence; and
d) The donor knew and appreciated what she was doing.
Other relevant factors include undue delay in prosecuting the claim, acquiescence or confirmation by the deceased, and the magnitude of the benefit or disadvantage.
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