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BCLI Updates the Undue Influence Recognition/Prevention Recommended Practices Guide
Gregory G. Blue
The 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 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.
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
Section 52 was expected also published separately as the “Undue Influence Recognition/ to lead to more Wills being Prevention Reference Aid.” challenged on the ground Section 52 of Wills, Estates and of undue influence, and possibly result in more Succession Act (WESA) was the impetus for the original version. It shifts the onus of proof from challenges... 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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The original version of the BCLI Guide appeared in 2012, before WESA came into force. One of the reasons for updating the BCLI Guide now is to reflect the present state of the law, including case law on undue influence that has accumulated since the Guide was issued. An even more important reason, however, is a need to take account of the radical changes made by the Wills, Estates and Succession Amendment Act 2020.
Remote witnessing of Will signature by audiovisual technology was introduced under emergency orders in March 2020 as a temporary, pandemicrelated measure. The Wills, Estates and Succession Amendment Act 2020 supplants the emergency orders retroactively and makes remote witnessing permanently available as an option.
The Act also makes it possible as of December 1, 2021, for a valid Will to be created entirely in electronic form, without ever being printed on paper. The electronic Will provisions are based on ones developed by the Uniform Law Conference of Canada. So far, British Columbia is alone among Canadian provinces and territories in recognizing electronic Wills.
Those legal changes, coupled with a tendency in society toward greater use of video technology for communications generally, will lead, as time goes by, to more virtual and fewer face-to-face meetings with clients, and also more situations in which Will-drafters will not be able to directly supervise the signing and witnessing of Wills in person.
As was the case with the original publication, an interdisciplinary volunteer committee will assist BCLI in carrying out the update to the BCLI Guide.
Sadly, the committee cannot include Leanne Rebantad, the Notary that The Society of Notaries Public appointed to the BCLI Board of Directors in 2019, because of her sudden passing in October 2021. She had been enthusiastic about the project to update and re-issue the BCLI Guide, and had planned to take an active role.
Other Notaries have volunteered to serve on the committee alongside experts in other relevant fields and work on the update is underway. The updated version of the BCLI Guide is expected to be issued in late 2022. s Gregory G. Blue, QC, is a Senior Staff Lawyer for the British Columbia Law Institute.
