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, and the testator making similar changes to
other documents such as powers of attorney or beneficiary designations.
For additional information on this or any other Estate-related matter, feel free
to contact our E is for Estate team. CONTACT US HERE
Erin Watson, J.D. E is for Estates
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