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The death of a family member is often a very difficult time for the loved ones who are left behind.

In addition to the grief of losing a loved one, contention about how the deceased’s property should be divided can put a strain on the relationships between surviving family members who may have different perceptions about how the deceased’s property should be divided.

Often, when a parent’s will favours one child over another, feelings of jealousy, distrust, or indignation may arise. The child who has not received what they were expecting from their deceased parent’s estate may believe that their sibling pressured or influenced their parent into leaving them more in the will. In law, this principle is referred to as “undue influence.”

If a person alleges that the deceased had been unduly influenced, that person will also generally have the responsibility of proving the allegation to be true.

However, there are certain relationships that create what is called a “presumption of undue influence.” These relationships are usually those where one person is in a position of power or dominance over another, such as where an elderly parent relies on their child as a caretaker. In these cases, the caretaker child would have to prove that they did not exercise undue influence or take advantage of their parent’s vulnerability.

An example of this situation that we recently encountered was where a sister alleged that her sibling forced her elderly mother to transfer her home into joint ownership with that sibling. The sister believed that her sibling pressured her mother into doing this to prevent her from having any entitlement to the home upon the mother’s death. The sister also claimed that her sibling pressured her mother into removing her from the will entirely. In order to counter allegations of undue influence in situations such as these, you must show that the person who gave the gift did so freely and was fully informed of the consequences. This can be challenging, as the person who gave the gift is no longer present to explain their choice.

For this reason, if you want to ensure that your wishes are respected after your death and your will does not create a legal disputes among your family, it is crucial to be proactive when you are planning how to divide your estate.

It may be wise to discuss your end-of-life planning with your loved ones so that you have the opportunity explain your wishes and address any perceived inequities. However, the importance of taking appropriate measures to formally protect your wishes cannot be understated.

If you are concerned that some family members may disagree with your will despite your explanations, you can obtain a certificate of independent legal advice. This is a formal document that can be signed by your lawyer at the time you create your will. It will verify that the lawyer who drafted your will is satisfied that you understand the nature and potential effects of the will, and that you are acting freely and voluntarily. Having this document will help dispel potential allegations of undue influence when the contents of the will are later revealed.

Written by Brittany Miller