Undue Influence & Estate Litigation in Ontario

Undue influence is a legal concept that allows a court to set aside a transaction or

document, such as a will, if a third party has manipulated or coerced the testator

into doing something against their will. This is known as equitable fraud and goes

beyond simple advice or persuasion.

Proving Undue Influence

To prove undue influence in a testamentary situation, it is not enough to show that a beneficiary had the opportunity or means to coerce the testator. It must be demonstrated that the party actually exerted power to the point where the will would not exist, or exist in its current form, if not for their influence.

The burden of proof falls on the party seeking to attack the validity of the will

based on undue influence. There is no presumption of undue influence in a

testamentary context, so the attacking party must always prove its existence.

Undue Influence & Suspicious Circumstances

Undue influence can be used as a standalone ground to challenge the validity of a

will. It can also lend credence to suspicious circumstances, which can defeat a

will. The person seeking to propound the will must prove the formal execution of

the will and the testator's knowledge, approval, and testamentary capacity. If the

testator made a will that meets the formalities required by relevant legislation, the

law presumes that they knew and approved of the contents and had the required

testamentary capacity. The challenging party must rebut this presumption by

proving the testator lacked testamentary capacity, knowledge, or approval of the

will's contents.

The Supreme Court of Canada has identified three general types of suspicious

circumstances: those surrounding the preparation of the will, those questioning the

testator's capacity, and circumstances suggesting the testator's free will was

overborne by acts of coercion or fraud. Relying on undue influence as grounds to

challenge a will can establish suspicious circumstances, which then rebut the

presumption of validity. However, proving undue influence remains the attacking

party's burden.

As the actual conduct of undue influence often happens when the perpetrator and

victim are alone, it can be challenging to produce direct evidence. Factors to

consider when establishing undue influence by circumstantial evidence include the

perpetrator's willingness or disposition to exert undue influence, the testator's

vulnerability, the degree of pressure required, the absence of moral claims of

beneficiaries, and whether the challenged will departs significantly from earlier

versions.

Possible Signs of Undue Influence

Signs of undue influence may include:

• social isolation

• dependency on the beneficiary for emotional and physical needs

• substantial transfers of wealth to a beneficiary

• recent family conflict or bereavement

• a beneficiary directing the testator to an unfamiliar lawyer to draft a new will

• a beneficiary conveying instructions to the drafting lawyer on behalf of the testator

• the new will being inconsistent with previous versions

• the testator making similar changes to other documents such as powers of attorney or beneficiary designations

For additional information on challenging a will on the grounds of undue influence please reach out for more information.

Erin Watson, J.D. E is for Estates