What is Undue Influence?
The doctrine of undue influence is used to set aside testamentary documents and inter vivos gifts or transfers (gifts or transfers made during one’s lifetime). A person is the victim of undue influence when he or she is coerced into making a disposition or transfer that they oppose through the improper use of power or trust in a way that deprives him or her of free will and substitutes another’s objective. There are two different tests for undue influence,[i] depending on whether the alleged undue influence resulted in either a testamentary disposition or an inter vivos gift or transfer.
1. Undue Influence and Wills
Legal Burden of Proving the Will
The person propounding the will (putting forward as valid) has the legal burden of proving due execution, knowledge and approval, and testamentary capacity.[ii] If the will was duly executed with the requisite formalities, it is presumed that the testator knew and approved of the contents of the will and had the necessary testamentary capacity.[iii]
The presumption that the testator had testamentary capacity and knew and approved the contents of the will can be rebutted by showing that there were “suspicious circumstances.”[iv] Suspicious circumstances may be raised by, among other things,[v] evidence tending to show that the free will of the testator was overborne by acts of coercion.[vi] If such evidence is adduced, the legal burden reverts to the propounder of the will.[vii]
Examples of Suspicious Circumstances
The following are some potential examples of suspicious circumstances:
- The will was prepared in secrecy;
- The will had curious dispositions;
- The testator was elderly;
- The testator was dependant on the beneficiary;
- The testator had a physical or mental disability;
- The testator lacked control of his or her personal affairs;
- The testator was isolated from friends and family members;
- The testator made drastic changes to his or her testamentary plan; and
- The testator was unwilling to give the solicitor full information as to his or her situation.
Testamentary Undue Influence
If the propounder proves that the testator had capacity and knew and approved the contents of the will, the burden of proving that it was executed with undue influence rests upon the party making the allegation.[viii] The party challenging the will must show on a balance of probabilities that the testator’s assent to the will was obtained by influence amounting to coercion, [ix] such that the mind was overborne and lacking independence.
A party alleging undue influence must show that the testator was coerced. It is not enough to show that he or she was persuaded or advised to make a certain testamentary disposition,[x]
so long as the testator had free volition to accept or reject the advice or persuasions. It must be shown that someone exercised undue influence, and it was for this reason the will was made.
It is difficult to prove actual undue influence, but the person challenging the will can use circumstantial evidence.[xi] This makes sense because undue influence is usually exerted in private, away from witnesses. Circumstantial evidence can include the background of the testator, the nature of their assets, their relatives and other having claims upon the estate, and his or her relationship to them.”[xii]
Indicators of Testamentary Undue Influence
The following is a non-exhaustive list of indicators of testamentary undue influence:
- The testator was increasingly isolated;
- The testator had recent family conflict;
- The testator experienced recent bereavement;
- The testator was dependant on the beneficiary;
- The testator made substantial pre-death transfers to the beneficiary;
- The testator made statements that he or she was afraid of the beneficiary;
- The testator made a new will that was inconsistent with his or her prior wills;
- The testator failed to provide an explanation for leaving his or her entire estate to the beneficiary and excluding others who would expect to inherit;
- The beneficiary selected the lawyer, who was previously unknown to the testator;
- The beneficiary conveyed the instructions to the lawyer; and
- The beneficiary received a draft of the will before it was executed, and the beneficiary transported the testator to the lawyer to have it executed.[xiii]
2. Undue Influence and Inter Vivos Transactions
There are two types of inter vivos undue influence, actual and presumed. The party alleging actual undue influence must prove it by showing that the recipient of the inter vivos transaction coerced the transferor/donor into making it.
If, however, there is a relationship of trust and confidence between the transferor/donor and transferee/donee, there is a rebuttable presumption that the gift or transfer was made by undue influence. If the presumption is established, the onus shifts to the transferee/donee to rebut the presumption.”[xiv]
Undue influence will be presumed when one person can dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.[xv] The ability to exercise such influence may arise from a relationship of trust or confidence but it may also arise from other relationships as long as the potential for domination inheres in the nature of the relationship itself.
Relationships where presumed undue influence have been found include the following: solicitor and client, doctor and patient, parent and child, trustee and beneficiary.”[xvi] That said, the relationships in which undue influence will be presumed are not confined to fixed categories and each case must be considered on its own facts.[xvii]
If presumption of undue influence is established, the person alleging a valid gift or transaction must rebut the presumption. This is an evidential burden but not a legal burden. This person can rebut the presumption by showing that there was no actual influence or no opportunity to use it. The person can also rebut the presumption by showing the donor/transferor received independent legal advice.
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[i] Seguin v. Pearson [Seguin], 2018 ONCA 355.
[ii] Vout v. Hay [Vout], 1995 CanLII 105 (SCC),  2 SCR 876 at para 26.
[iii] Ibid at para 26.
[iv] Ibid at para 25.
[v] Suspicious Circumstances refer to circumstances surrounding the execution and the preparation of a with or other planning document and may loosely involve the following: circumstances surrounding the preparation of the will or other instrument; circumstances tending to call into question the capacity of the testator or grantor, and; circumstances tending to show that the free will of the testator/grantor was overborne by acts of coercion or fraud. See Vout at para 25.
[vi] Ibid at para 25.
[vii] Ibid at para 27.
[viii] Ibid at paras 21 and 28.
[ix] Ibid at para 21.
[x] Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at page 82.
[xi] Banton v. Banton, 1998 CanLII 14926 (ON SC) at para 96: In this case, the testator, George Banton, had five adult children with his first wife. At the age of 88, he married Muna Yassin, who was 57 years his junior and an employee at the long-term care home in which Banton was residing. Two days after getting married, Banton and Yassin attended the offices of a lawyer to make a new will for Banton. Shortly thereafter, Banton executed a new will that left his entire estate to Yassin. Several months later, he executed a similar will. During this time, Banton was frail, deaf, vulnerable, cognitively impaired, dependent on others, terminally ill with prostate cancer, and significantly detached from reality. As soon as Banton moved in with Yassin, his contact with his children virtually ceased. The Court found that, during the time the wills were executed, Banton was incapable of making an independent decision with respect to the disposition of his property and was under the influence of Yassin, and this influence was deliberately exerted to enable her to obtain control and ownership of his assets. Consequently, Banton’s wills were procured by undue influence and thus invalid.
[xii] Ibid at para 126 citing Eady v. Waring (1974), 1974 CanLII 492 (ON CA), 2 O.R. (2d) 627, 43 D.L.R. (3d) 667 (C.A.).
[xiii] Gironda v. Gironda 2013 ONSC 4133, 2013 CarswellOnt 8612 at para 77 and Tate v. Gueguegirre 2015 ONSC 844 (Div. Ct.) at para 9.
[xiv] Seguin, supra, note 1 at para 10.
[xv] Goodman Estate v. Geffen (1991), 81 D.L.R. (4th) 211 (S.C.C.).