2001 B.C.S.C. 935 (Canlii)
Mr. Araujo was a step-father. At age 84 and 85 he made 3 gifts to his step daughter Maria. In 1991 Mr. Araujo also made a will in favour of Maria. Maria lived with Mr. Araujo and his wife. Mrs. Correia died in 1994, but, Mr. Araujo and Maria continued to live together. Mr. Aranjo had not seen Carlos for 5 years but, he met his stepson Carlos in 1995 and Carlos took him to a lawyer in October, 1996, making a will leaving his estate to Carlos. Mr. Araujo died in May 1997.
There were suspicious circumstances surrounding the 1995 and 1996 wills benefitting Carlos. Circumstantial evidence of undue influence is admissible. Idea of making a new will was not the testators. The testators was ill and given false impressions about Maria. Carlos instructed the lawyer. Coercion existed. As to gifts to Maria, if there is evidence, of influence by the donee and the relationship raises a presumption that donee had influence, then the gift will be set aside subject to proof of a voluntary act. A second group of cases involves situations where the donee has duty to advise or to manage donor’s property. Here the burden shifts on the donee ie. trustee/beneficiary, doctor/patient; solicitor/client; guardian/ward; parent/child; and future husband/fiancée, to show independent advise or freedom from influence.
Maria rebutted the presumption of undue influence for gifts as Mr. Araujo had independent advice from an experience lawyer who had extensive notes, including stories of abuse by Carlos from the parent.
There is no presumption of undue influence regarding wills, just inter vivos gifts. Carlos was not able to rebut the presumption of undue influence regarding gifts he had received.