I recently presented at the 29th LSO Estates and Trusts Summit (October 20, 2026) on the topic of suspicious circumstances in power of attorney disputes, along with my co-panelist, Shalom Cumbo-Steinmetz. Below are some of the key take-aways from the presentation.
The doctrine of suspicious circumstances is traditionally associated with will challenges; however, the doctrine transcends into other areas of estates law, and specifically, to power of attorney disputes. Across Canada, Courts have increasingly applied the suspicious circumstances doctrine to power of attorney litigation. The emerging jurisprudence raises important questions surrounding the foundation of the doctrine, evidentiary consequences, and the relationship between suspicious circumstances, capacity, and undue influence.
The starting point is the Supreme Court of Canada decision of Vout v. Hay.[1] There, the Court explained that if a will complies with the formalities of execution and it is demonstrated that the testator knew and approved of its contents, the Court assumes the testator possessed the requisite testamentary capacity and approved of the will.[2] The Court went on to state that the presumption may be rebutted where evidence gives rise to “suspicious circumstances,” which may relate to: (1) circumstances surrounding the preparation of the will; (2) circumstances tending to call into question the testator’s capacity; or (3) circumstances tending to show that the testator’s free will was overborne by coercion or fraud.[3] Further, where suspicious circumstances are established, “the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval”.[4] The Court also emphasized that the standard of proof remains the civil standard of proof on a balance of probabilities.[5]
Ontario jurisprudence in recent years has paved the way for suspicious circumstances to be considered in power of attorney disputes.
The case of Nguyen-Crawford v. Nguyen[6] involved an elderly mother, (“Ms. Nguyen”), whose primary language was Vietnamese. Her daughter (“Ms. Nguyen-Crawford”) accompanied Ms. Nguyen to her (Ms. Nguyen’s) lawyer’s office. Ms. Nguyen-Crawford translated for her mother both the power of attorney documents as well as her solicitor’s advice. In addition, the Court commented that Ms. Nguyen was substantially dependent upon her daughter. The powers of attorney executed by Ms. Nguyen gave Ms. Nguyen-Crawford extensive authority to act on her mother’s behalf. Unfortunately, in light of the evidence, it was discovered that Ms. Nguyen-Crawford and her husband subsequently treated Ms. Nguyen’s funds as their own. Against this factual background, Price J. concluded that the usual presumption of capacity could not be relied upon. Thus, the Court held that where suspicious circumstances of undue influence surround the execution of a power of attorney, the presumption of capacity under s. 2 of the Substitute Decisions Act, 1992[7] cannot be relied upon.[8] Accordingly, the burden of establishing capacity then shifts to the grantee of the power of attorney.[9]
As a result, the Court ultimately found that Ms. Nguyen-Crawford had not met that burden and declared the powers of attorney to be of no force and effect.
Subsequent to Nguyen-Crawford, the Ontario Court of Appeal considered the same issue in the case of Vanier v. Vanier.[10] In this case, three siblings disagreed over who should exercise authority over Rita Vanier’s (“Ms. Vanier”) (their mother’s) property. Ms. Vanier had previously appointed her two sons jointly and severally as her attorneys for property; however, in 2015, she executed a new continuing power of attorney appointing one son in place of her other son. The validity of the power of attorney was then challenged. Undue influence and suspicious circumstances were alleged based on, among other things, that Ms. Vanier had not received independent legal advice and the new attorney for property told Ms. Vanier that she would not have access to her money unless she signed the new document.
The Court of Appeal acknowledged the findings in Nguyen-Crawford and held that where suspicious circumstances of undue influence surround the execution of a power of attorney, the presumption of capacity does not operate and the burden of proving capacity shifts to the grantee.[11]
Finally, the case of Rudin-Brown et al. v. Brown (“Rudin-Brown”), represents a further development of the Ontario approach and provides a clear explanation as to how the suspicious circumstances framework operates in the power of attorney context.[12] While the facts are worth reviewing, this case is notable as the court identified five factors relevant to the suspicious circumstances inquiry: (1) the extent of physical and mental impairment around the time of execution; (2) whether the instrument represented a significant change from the prior instrument; (3) whether the instrument made sense in light of the grantor’s interests; (4) the factual circumstances surrounding execution; and (5) whether the beneficiary was instrumental in preparing the instrument.[13]
The emerging Canadian jurisprudence demonstrates how the doctrine of suspicious circumstances is no longer confined to wills only. The Courts Ontario (as well as in Manitoba and British Columbia) have increasingly applied the doctrine to powers of attorney where the circumstances surrounding their execution call into question the donor’s capacity or the autonomy relating to the decision.
For estates practitioners, the evolving case law underscores the importance of careful execution practices and the existence of contemporaneous evidence demonstrating the donor’s understanding and independent decision-making.
[1] Vout v. Hay, [1995] 2 S.C.R. 876.
[2] Ibid., at paras. 19–20, 25–27.
[6] Nguyen-Crawford v. Nguyen, 2010 ONSC 6836.
[7] Substitute Decisions Act, 1992, S.O. 1992, c. 30, section 2.
[8] Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, at para 85.
[9] Ibid.
[10] Vanier v. Vanier, 2017 ONCA 561.
[12] Rudin-Brown et al. v. Brown, 2021 ONSC 3366.
[13] Ibid.
