Recommended Practices Guide for Prevention of Undue Influence

Greg Blue

The BC Law Institute (BCLI) has issued a new version of its Guide on recommended practices for dealing with potential undue influence surrounding Wills and other Personal Planning and Estate documents.

Many Scrivener readers will be familiar with the original version that has been listed for a number of years as a practice resource on the websites of both The Society of Notaries Public and the Law Society, and used in teaching Notarial candidates in the Master of Arts Program in Applied Legal Studies at SFU.

The new version with the shorter title, “Undue Influence Recognition and Prevention: A Guide for Legal Practitioners” (the “new BCLI Guide”), has been revised and updated to reflect changes in law and practice since the original version appeared in 2012.

In particular, they include remote execution and witnessing of Wills, Powers of Attorney, and Representation Agreements by audiovisual technology, electronic Wills, and increased use of videoconferencing generally in legal practice in the postpandemic era.

The Notary Foundation funded the development of both the original and updated versions of the BCLI Guide; prominent members of the BC Notary profession played an important role in the process at both times. Notaries Morrie Baillie, Patricia Fedewich, and Hilde Deprez served on the Project Committee that developed the new BCLI Guide.

Morrie Baillie Patricia Fedewich Hilde Deprez

Notaries Laurie Salvador and R. H. (Rick) Evans served on the counterpart committee that Laurie Salvador R. H. (Rick) Evans developed the original Guide.

The Project Committee, assembled by BCLI to assist in the revision and updating of the Guide, brought interdisciplinary expertise to bear on the exercise. Its members had extensive knowledge and experience in law, medicine, social work, psychology, and risk management. In the course of the project, BCLI and the Project Committee consulted with • the professional governing bodies and professional associations; • leading practitioners with a special interest and expertise in undue influence; and • numerous community and national organizations with mandates related to the purposes of the Guide.

The list of “red flags” that should factor into a legal practitioner’s awaremess that undue influence might be in operation has been expanded in the new BCLI Guide to cover nonverbal cues more extensively with appropriate cautions, and new points specifically associated with videoconferencing in client communications.

The chapter entitled “What Is Undue Influence in Fact?” contains additional information on the medical and psychological aspects of undue influence, while the chapter on the law of undue influence covers nontestamentary undue influence more extensively.

Intercultural communication is another area expanded in the new BCLI Guide. Undue influence is a sensitive subject to address with any client and differences in language, attitudes, outlook, and family dynamics between and among cultures can make it much more so.

The new BCLI Guide informs legal practitioners of cross-cultural matters they need to bear in mind

when communicating with Indigenous clients, those belonging to other cultural communities, and their supporters. Suggestions are made for conducting cross-cultural communication that is both respectful and effective in situations when practitioners find it necessary to explore the possibility that The chapter entitled drafting instructions do not represent the

“What Is Undue client’s true wishes, but instead those of

Influence in Fact?” someone exerting undue influence on the client. contains additional information on The new BCLI Guide contains an updated version of the popular Reference the medical and Aid consisting of a checklist that can be psychological aspects used in conducting client interviews and of undue influence... a flowchart. As before, the Reference Aid is also being made available as a separate publication. Like the original version, the new BCLI Guide is available free of charge in PDF format or in print. The PDF may be downloaded from the BCLI website at www.bcli.org. s Gregory G. Blue, KC, is a Senior Staff Lawyer for the British Columbia Law Institute.

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