In a 2019 decision, an Ontario court discussed the principles and main indicators of undue influence in estate litigation cases in a dispute over a mother’s $21 million estate.

Brother and Sister Dispute Distribution of Estate

The testator was 94 years old when she passed away in 2016, leaving behind a son and a daughter. At her death, she had more than $21 million in assets.

Following her death, the son and daughter disputed the distribution of the testator’s estate. The son claimed to be entitled to the totality of the estate, while the daughter argued that she was entitled to half.

While the daughter raised several issues, including suspicious circumstances, testamentary capacity and will validity, this post focuses on the claim of undue influence.

On that claim, the daughter argued that the son had unduly influenced the testator into signing legal documents and executing a new will in 2013 that had the effect of cutting her out of any distribution of assets.

In response, the son denied that he had unduly influenced the testator in her decision to leave him everything. He contended that his conduct came out of concern for the testator’s well-being and to provide comfort in the last stage of her life. For instance, the son had found new lawyers to aid the testator in signing legal documents and creating a new will because the testator had lost her previous lawyer. The son claimed that the testator had cut out the daughter from the estate for legitimate reasons.

Discussion and Indicators of Undue Influence

The court began by explaining that the doctrine of undue influence was developed “not to save people from the consequences of their own folly but to save them from being victimized by other people”, and it will intervene and set aside arrangements when the testator or gift giver’s volition is dominated by another person, with the result that the person really did not express his or her mind. Testamentary undue influence consists of “outright and overpowering coercion of the testator”.

Regarding the burden of proof for undue influence, the court explained that in inter vivos gifts involving a relationship of influence by a donee over the donor of a gift, there is a presumption of undue influence; once the presumption is established, the onus moves to the recipient of the gift to rebut the presumption. In the case of testamentary dispositions, the burden of proof is on the party challenging the testamentary disposition to demonstrate that it was the product of undue influence. The court stated:

“A testamentary disposition will only be invalidated on the basis of undue influence when the person challenging the document establishes, on a balance of probabilities, “that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not of the deceased” […]. In such circumstances, the testamentary disposition does not reflect the intentions of the person who made the testamentary disposition but rather the wishes of the person exerting the undue influence.”

The court then explained that an assessment of undue influence does not require that the court identify specific coercion at the time that the testamentary document was executed or the inter vivos gift provided; rather, it is sufficient that the surrounding circumstances show undue influence. In conducting this assessment, the court set out 12 indicators of undue influence, as established in previous case law, as follows:

  • Had the testator experienced recent family conflict?
  • Was the testator socially isolated?
  • Did the testator make new testamentary dispositions inconsistent with previous wills?
  • Did the testator make changes to testamentary dispositions simultaneously with changes to other legal documents?
  • Were the changes made in the testamentary dispositions made using a lawyer previously unknown to the testator?
  • Was the new lawyer chosen and retained by the alleged influencer?
  • Did the alleged influencer communicate instructions to the lawyer acting for the testator?
  • Did the alleged influencer receive a draft of the document prior to the testator?
  • Did the testator make substantial pre-death transfers of wealth to the alleged influencer?
  • Was the testator dependent on the alleged influencer for emotional and physical needs?
  • Was the testator kept socially isolated from disinherited family members?
  • What was the impact of the advice by the lawyer on the issue of undue influence?

Finally, the court stated that undue influence can manifest through manipulation, coercion, or subtle abuse of power. It concluded that an assessment of undue influence requires a determination of whether the influence imposed was “so great and overpowering that the document reflects the will of the [benefactor] and not the deceased”.

Court Finds Undue Influence

After reviewing all the evidence of the case, the court rejected the daughter’s claims relating to suspicious circumstances, testamentary capacity and undue influence at the time of the testator’s execution of her 2013 will.

However, the court did make a finding of undue influence by the son in the testator’s execution of legal documents in 2013.

As a result, under the terms of the valid will, the court held that the son was entitled to 75% of the estate and the remaining 25% would go to the daughter.

Get Help

Estate disputes are complicated: they involve high levels of emotion, usually by individuals who are grieving the loss of a family member or who are dealing with a loved one who is very ill. Such disputes can become quite lengthy and can take months or even years to resolve, prompting individuals to take sides, creating acrimonious divisions, and eating into the value of an estate.

At Campbells LLP, our team of compassionate and highly skilled Oakville estate litigation lawyers have been assisting clients with estate disputes and resulting litigation since 1999. We are proud of the strong, long-lasting relationships that we build with our clients and provide a steady sounding board and legal advice to guide them through what can be one of the most emotionally draining times in their lives. With our help, we can ensure that the legacy of our client’s loved ones is carried out exactly as they wished, that their health and well-being is taken care of, and that their estate is protected.

At Campbells LLP, our exceptional estate lawyers can represent you in all estate litigation matters. We know that many individuals work during the week and cannot meet during the day. One of our lawyers would be pleased to meet with you in the evening or during the weekend, by appointment, if your schedule so requires. Contact us online or at (905) 828-2247. We look forward to speaking with you and going through this process by your side.