Where there's a will, there will soon be an end to archaic laws - by Ian Mulgrew

In a move that will help protect the vulnerable and infirm, Victoria at long last is moving to resolve the chaotic legislation governing wills and inheritances.

Attorney-General Mike de Jong says that Bill 4 will replace seven separate acts with one -- the Wills, Estates and Succession Act -- modernizing and streamlining the existing legal regime.

It is overdue.

The last time anyone comprehensively reviewed these laws was back in 1920 and many provisions trace their roots back even further, to the Wills Act of 1837.

As you can imagine, or if you're one of the unfortunates who fell into the chasms, there are some real problems with the present legislation.

Lawyers have been lobbying for change for some time and the courts, too, have issued rulings calling on the government to amend the archaic laws.

I think one of the most important anomalies the government is moving to fix is the law governing what is known as "undue influence." That's when your doctor, lawyer, would-be pal or suddenly loving relative has you sign away property or cash while you're on your deathbed, non compos mentis or too weak to resist.

Happens regularly.

Lawyers in New York last year were caught drawing up wills for wealthy clients and inserting each other's names for multi-million-dollar bequests of art, apartments and cash.

There are ugly rumours in the legal community that a couple of B.C. lawyers have engaged in the same legerdemain.

Under provincial law, unfortunately, the onus is on the person who alleges someone unduly influenced a will to prove it, a nearly impossible task since the key witness is dead.

In other areas of law, it's the other way around -- as it should be -- and the suspected recipient must establish everything was kosher and any gift received under such circumstances proven legitimate.

Aggravating this situation, the Law Society does not require members to disclose any inheritance they receive from clients, so there is ample potential in B.C. for abuse.

Add to this the exorbitant cost of pursuing a lawsuit on the basis of "undue influence" and you can appreciate the present mess.

Where disappointed beneficiaries fail to prove their claim, they are often severely penalized. The courts increasingly award full indemnity for costs against parties who fail to prove such claims. They must pay both their own costs and often special costs to the successful heirs that can easily top $150,000.

To its credit, the government has addressed the concerns about vulnerable individuals falling prey to a covetous relative or unscrupulous professional.

Changing the onus of proof will still allow you to make provisions for a caregiver or someone in a position of trust. Naturally, everyone should be able to change his or her will and make valid bequests right up until the end. Greater scrutiny will simply ensure that each of us is not coerced into doing so.

After the public, the legal community and the legislature have had a chance to review the new legislation, it should be law by 2011.

"I am surprised that it has been introduced," said a pleased Trevor Todd, who specializes in disinheritance cases and was among the most vocal advocates of change.

"It has been a long time coming."

While it's a start, isn't it also time we required lawyers to declare any inheritance they receive from a client?

Source: http://www2.canada.com/vancouversun/news/story.html?id=a9d0f101-410b-4a3a-a295-4f3089ac2873

Ian Mulgrew
The Vancouver Sun
10-13-2009

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