Generally, the validity of a last will and testament can be challenged on the basis of: (i) lack of testamentary capacity; (ii) undue influence; (iii) lack of knowledge and approval of the will; and/or (iv) fraud. While allegations relating to undue influence often go hand-in-hand with claims relating to lack of testamentary capacity, it is not always so. In fact, undue influence may exist even where the testator has capacity and knows and appreciates what he is doing.[1] (The case for undue influence may, however, be harder to prove without evidence of lack of testamentary capacity). Whether a will challenge application is brought on the basis of undue influence, with or without an accompanying (lack of) testamentary capacity claim, it is helpful to review the key principles of undue influence as it operates as its own distinct concept. The features of claims of undue influence have been widely explored in the case law, as summarized below.

Undue influence is an equitable doctrine that “saves” people from being victimized by others.[2] The doctrine may be used to set aside a will where the challenging party establishes on a balance of probabilities that the influence imposed by some other person on the deceased was such that the will reflects the will of the former and not the testamentary wishes of the later (deceased).[3] In other words, undue influence is much more than pressure – it must be that the wishes of the testator were overcome by the undue influence-r.

Undue influence is subtle and is almost always exercised in secret.[4] It can manifest through manipulation, coercion, or abuse of power.[5] Direct evidence of undue influence is not strictly required; instead, the court will look at the circumstantial evidence surrounding the preparation and execution of the will to determine whether or not the testator had a sufficiently independent operating mind to withstand competing influences and act on his own free volition.[6]

Relatedly, evidence of undue influence is not limited to the time the will was executed. Circumstances precipitating the drafting of the will are relevant, and evidence of circumstances following the preparation and execution of the will may be relevant as well.[7]

A review of the case law reveals that the Courts have considered the following factors, among others, in determining whether a Will was the result of undue influence: (i) the testator’s background;[8] (ii) the nature of the testator’s assets;[9] (iii) the social, emotional, or physical isolation of the testator;[10] (iv) whether the testator is dependent on the beneficiary/undue influence-r for emotional and physical needs;[11] (v) the frailty or vulnerability of the testator;[12] (vi) the physical and mental condition of the testator;[13] (vii) whether the testator has experienced a bereavement in recent years;[14] (viii) whether the testator’s relatives and others having claims upon his bounty, and his relationship to them;[15] (iv) the absence of moral claims or other reasons for the estate to pass to the beneficiaries under the disputed will;[16] (x) whether the person accused of asserting undue influence had an opportunity to do so;[17] (xi) the willingness or disposition of the person accused of asserting undue influence to do so;[18] (xii) whether the testator has failed to provide a reason or explanation for unexpectedly excluding a family member;[19] and (xiii) whether the will departs radically from the dispositive patterns of earlier wills.[20]

Finally, a finding of undue influence is not rebutted or made unlikely simply because the testator received independent legal advice. Put differently, consulting with a lawyer is not an inoculation against undue influence.[21]

It is important to understand the nuances of undue influence claims when bringing a will challenge application on this basis, as well as the case law which has thoroughly explored the topic.

 

[1] Tate v Gueguegirre, 2015 ONSC 844 (CanLII), at para. 10; Trotter v Trotter, 2014 ONCA 841 (CanLII), at para. 62.

[2] Abbruzzese v Tucci, 2024 ONSC 957 (CanLII), at para. 200 (“Abbruzzese”), citing Geffen v Goodman Estate, 1991 CanLII 69 (SCC), at para. 24.

[3] Banton v Banton, 1998 CanLII 14926 (ON SC), at para. 89 (“Banton”).

[4] Scott v Cousins, 2001 CarswellOnt 50, at para. 48, Tab 26.

[5] Slover v Rellinger, 2019 ONSC 6497, at para. 431 (“Slover”).

[6] Slover, at paras. 384-85; Estate of Louis Fournier v Lamont, 2024 NBKB 162, at para. 140 (“Lamont”); Seguin v Pearson, 2016 CarswellOnt 17438, at para. 379 (“Seguin”), Tab 27.

[7] Lamont, at para. 139; Kozak Estate (Re), 2018 ABQB 185 (CanLII), at para. 14 (“Kozak”).

[8] Banton, at para. 126.

[9] Banton, at para. 126.

[10] Lamont, at para. 140; Abbruzzese at para. 201.

[11] Abbruzzese, at para. 201.

[12] Lamont, at para. 140; Cozza v Venneri, 2022 ONSC 7053, at para. 160 (“Cozza”).

[13] Stewart v Stewart, 2021 ONSC 1222 (CanLII), at para. 61.

[14] Abbruzzese, at paras. 201, 218; Lamont, at para. 140.

[15] Banton, at para. 126.

[16] Lamont, at para. 140; Cozza, at para. 160.

[17] Lamont, at para. 140; Cozza, at para. 160.

[18] Lamont, at para. 140; Cozza, at para. 160.

[19] Abbruzzese, at para. 201.

[20] Cozza, at para. 160; Abbruzzese at para. 201.

[21] Kozak, at para. 16.