Undue influence is a doctrine which can be used by our Courts to set aside a Last Will and Testament. It can be found where one person dominates the will of another through manipulation, coercion, or by abusing their power over a testator.
Undue influence is more than persuasion, there must be an element of coercion. It is approached differently depending on whether it is raised in the context of a gift or testamentary instrument. This article will focus only on testamentary undue influence.
The propounder (the one alleging a valid Will) has the burden of proving that the testator duly executed the Will, had knowledge of it, approved it, and capacity to execute the Will. There is often an interplay between claims of undue influence and suspicious circumstances. However, absent suspicious circumstances, an individual challenging the Will on the basis of undue influence has the burden of proving undue influence on a balance of probabilities. The onus will shift to the propounder when there is a potential for domination in the nature of the relationship, and the transfer is more akin to a gift than a commercial transaction.
A finding of undue influence is a factual one which may be based upon circumstantial evidence. A Court will consider the following factors for whether undue influence is established by circumstantial evidence:
- The willingness or disposition of the persons to have exercised the undue influence;
- Whether an opportunity existed;
- The vulnerability of the testator;
- The degree of pressure that would be required;
- Absence of moral claims of the beneficiaries; and
- Whether the Will departs radically from the dispositive patter of earlier Wills.
While the existence of undue influence is fact specific, the Court has provided certain indicators of undue influence which includes:
- When the beneficiary suddenly directs the testator to a new lawyer that is unknown to the testator to draft a new Will;
- A beneficiary has conveyed instructions to the drafting lawyer on behalf of the testator;
- The testator made a new Will that is inconsistent with previous iterations of the Will;
- The testator made changes that were similar to changes made in other documents, such as a power of attorney.
Cases involving claims of undue influence can be complex and challenging. Please contact our office to arrange a consultation if you have questions about commencing a claim of undue influence.
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
