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Pardeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2024, and a member of the Law Society of British Columbia.
Updated November 11, 2026: the Wills, Estates and Succession Act (ss. 52, 60 and 61), the Supreme Court Civil Rules, Part 25, and the court decisions cited below checked that day.
The rule: a will made under undue influence is invalid. Since March 31, 2014, if you show the person who benefited was in a position where the will-maker could be dependent on or dominated by them, the burden shifts: they must prove they did not unduly influence the will (WESA s. 52).
The bar: persuasion isn’t enough. The influence must amount to coercion that the will-maker couldn’t resist.
The timing: raise it before probate is granted if you can. A notice of dispute stops the grant and lasts one year unless renewed (Rule 25-10).
The lawyers who handle these estate files
About our lawyers
Sundeep S. Grewal founded Lawgical Law Corporation and practises probate, estate litigation and immigration. He has represented clients in the Provincial and Supreme Courts of British Columbia, from chambers applications to contested trials.
Pardeep S. Grewal is a probate, estates and immigration lawyer known for clear communication and practical strategy.
Undue influence is pressure that overpowers a will-maker’s own wishes, so that the will reflects what someone else wanted instead. Persuasion, advice and appeals to affection are allowed; coercion is not. In BC, section 52 of the Wills, Estates and Succession Act helps the person challenging the will. If you prove that the person who benefited was in a position where the will-maker could be dependent on them or dominated by them, it is then up to that person to prove they did not use that position to influence the will. These cases turn on evidence about the will-maker’s health, who controlled their life, and how the will came to be made, and the drafting lawyer’s file is often the most important document.
Lawgical Law Corporation, an estate litigation and probate law firm with offices in Surrey, Abbotsford and Vancouver, BC, acts in will challenges, including claims that a will was made under undue influence.
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What is undue influence in a BC will?
It is influence that takes away the will-maker’s free choice. The BC Court of Appeal has described it as “influence which overbears the will of the person influenced so that in truth what she does is not his or her own act” (Longmuir v. Holland, 2000 BCCA 538 at para. 71). The level of coercion must be high. In Leung v. Chang, 2013 BCSC 976 at para. 35, the court said the influence “must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency”, and that advice, persuasion, an appeal to the will-maker, or the will-maker’s own wish to please someone, will not be undue influence if the will-maker remains able to act freely.
The influence must also have produced the will. It is not enough to show that someone had the power to overbear the will-maker; it must be shown that the power was used, and that the will was obtained by using it.
How does section 52 shift the burden?
Before WESA, the person attacking a will had to prove undue influence, which is hard because it usually happens behind closed doors. The Supreme Court of Canada explained the old rule in Vout v. Hay, 1995 CanLII 105 (SCC). Section 52 changed that for will-makers who died on or after March 31, 2014. If the challenger establishes that another person was in a position where the potential for dependence or domination of the will-maker was present, then “the party seeking to defend the will or the provision of it that is challenged has the onus of establishing” that undue influence was not used.
| Step | Who has to prove it | What has to be shown |
|---|---|---|
| 1 | The person challenging the will | On a balance of probabilities, the other person was in a position where the will-maker could depend on or be dominated by them (Kerfoot v. Richter, 2018 BCCA 238) |
| 2 | The person defending the will | The influence they had did not amount to coercion that the will-maker couldn’t resist and that destroyed their free agency |
Proof of bad intent isn’t needed to trigger the presumption. A person can be found to have unduly influenced a will-maker even if they sincerely believed they were acting honestly.
What does the court look at?
No single fact decides a case. Courts have accepted that a will-maker whose mental capacity is diminished is more vulnerable to undue influence (Brydon v. Malamas, 2008 BCSC 749 at para. 184). To rebut the presumption under section 52, the person defending the will can show, for example, the factors set out in Stewart v. McLean, 2010 BCSC 64 at para. 97, which were applied to section 52 in Trudeau v. Turpin Estate, 2019 BCSC 150:
| Factor | Why it matters |
|---|---|
| No actual influence was used, or there was no opportunity to use it | Undue influence needs both the position and its use |
| The will-maker had independent legal advice, or the chance to get it | The most common evidence used to rebut the presumption |
| The will-maker could resist influence | A historically strong-willed will-maker is harder to influence |
| The will-maker knew and understood what they were doing | Shows the will was their own act |
| The size of the benefit | The larger the gift, the closer the scrutiny |
Was the legal advice really independent?
Courts look at whether the person who benefited was present when the advice was given or the will was signed, whether that person hired the lawyer or gave the instructions, and whether the lawyer discussed the effect on family members who would otherwise have inherited. The wills files of the lawyers involved are often critical evidence.
Undue influence, lack of capacity, or wills variation?
These are different claims, and many cases raise more than one.
| Claim | The question | Who can bring it | Source |
|---|---|---|---|
| Undue influence | Was the will the result of coercion that overpowered the will-maker? | Anyone with an interest in the estate | WESA s. 52 |
| Lack of capacity | Did the will-maker understand what they were doing when they made the will? | Anyone with an interest | Common law test |
| Wills variation | Does a valid will fail to make adequate, just and equitable provision? | Only a spouse or child | WESA s. 60 |
What are the time limits?
| Stage | What applies | Source |
|---|---|---|
| Before probate is granted | A notice of dispute stops the grant from issuing and lasts one year unless renewed | Rule 25-10 |
| After probate is granted | WESA sets no fixed deadline, but challenging the will usually means asking the court to revoke the grant, and the Limitation Act’s two-year basic period from discovery is likely to apply | Limitation Act |
| Wills variation (spouse or child) | Start within 180 days of the grant, and serve within 30 days after that | WESA s. 61 |
What happens if undue influence is proved?
Generally, a will found to be the product of undue influence is wholly void. Whether a court can cut out only the influenced part is unsettled. If the will fails, an earlier valid will may apply, or, if there is none, the estate is shared as if there were no will.
What does a will challenge cost?
It depends on how far the case goes. Many settle at mediation. We can act on a contingency basis in will challenges, so that our fee depends on the result; we explain how that works at the first meeting.
Why this needs a lawyer
One lawyer, one file, every step:
- reviewing the will, earlier wills and the timeline;
- filing a notice of dispute to stop the grant while the evidence is gathered;
- getting the medical records and the drafting lawyer’s file;
- the court claim, mediation and, if needed, trial.
Mistakes I have seen
- I have seen families wait until after probate was granted, which made the challenge harder.
- I have seen claims built on suspicion alone, without the medical records or the drafting lawyer’s notes.
- I have seen a child confuse “unfair” with “invalid”, when a wills variation claim was the right route and its 180-day clock was running.
Frequently asked questions
Is a caregiver who inherits automatically suspect?
No. Many caregivers are left gifts out of real gratitude. But if the caregiver was in a position of dependence or domination, section 52 puts the burden on them to show they didn’t unduly influence the will.
Does section 52 apply to gifts made before death, or to beneficiary designations?
Section 52 applies to wills. Gifts made during life can be challenged under the common law presumption of undue influence set out by the Supreme Court of Canada in Geffen v. Goodman Estate, 1991 CanLII 69 (SCC). Beneficiary designations on insurance or registered plans may fall outside section 52, so the burden may stay with the challenger.
What if the will was made at a lawyer’s office?
That helps the will, but it is not the end of the question. The court looks at whether the advice was truly independent, and the lawyer’s notes about who attended and what the will-maker said are often key evidence.
What if the will-maker died before March 31, 2014?
Section 52 applies only where the will-maker died on or after March 31, 2014. For earlier deaths, the person attacking the will has to prove undue influence.
Related guides
See contesting a will in BC, adult children contesting a will and a will that wasn’t signed properly. Also see a will changed shortly before death and paying for a will challenge.
What should I do right now?
Write down what you know: when the will was made, who was involved, the will-maker’s health at the time, and any earlier wills. If probate hasn’t been granted, ask about filing a notice of dispute now.
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Sources
- Wills, Estates and Succession Act, ss. 52, 60 and 61
- Supreme Court Civil Rules, Part 25, Rule 25-10
- Limitation Act
- Vout v. Hay, 1995 CanLII 105 (SCC); Geffen v. Goodman Estate, 1991 CanLII 69 (SCC)
- Longmuir v. Holland, 2000 BCCA 538; Kerfoot v. Richter, 2018 BCCA 238
- Leung v. Chang, 2013 BCSC 976; Brydon v. Malamas, 2008 BCSC 749; Stewart v. McLean, 2010 BCSC 64; Trudeau v. Turpin Estate, 2019 BCSC 150
This article is general information, not legal advice. Every case depends on its own facts.