Undue influence occurs when an individual is pressured or coerced into making decisions that do not reflect their true wishes. This is particularly relevant in estate litigation, where the validity of wills, testamentary documents, and other estate transfers may be challenged due to concerns that the testator was improperly influenced.
Burden Of Proof In Undue Influence Claims
In Vout v. Hay, [1995] 2 S.C.R. 876, the Supreme Court of Canada affirmed that the burden of proving undue influence rests with the party contesting the will. Establishing undue influence is crucial in estate litigation, as it is one of the most common grounds for challenging testamentary documents.
Coercion As A Key Element In Proving Undue Influence
The case of Orfus Estate v. Samuel and Bessie Orfus Family Foundation, [2011] O.J. No. 4301, illustrates that undue influence is often substantiated by evidence of coercion—meaning the testator lacked genuine voluntariness in executing the will. Coercion may be evident when the terms of the will starkly contradict the testator’s previously expressed intentions.
It is important to note that while lack of testamentary capacity can strengthen an undue influence claim, it is not, on its own, sufficient to prove undue influence. Conversely, the presence of testamentary capacity and an understanding of the document does not automatically negate an undue influence claim.
Assessing Undue Influence In Estate Litigation
In Gironda v. Gironda (2013 CarswellOnt 8612), the Ontario Superior Court of Justice outlined several factors that may indicate undue influence in will-making, including:
- The testator’s financial or emotional dependence on the beneficiary
- Family conflicts that may have pressured the testator
- Frequent or inconsistent changes to the will
- The testator’s social isolation, making them more vulnerable to manipulation
- Bereavement or the recent loss of a loved one, impairing the testator’s judgment
- Will changes that mirror alterations in other legal documents, such as Powers of Attorney
In Tate v. Gueguegirre (2015 ONSC 844), the Ontario Divisional Court reaffirmed the Gironda list and identified additional red flags, such as:
- A beneficiary communicating the testator’s instructions to the estate lawyer
- The beneficiary accessing the draft will before it is executed
- The beneficiary selecting a lawyer unfamiliar to the testator
- Excluding most beneficiaries and leaving the entire estate to a single person without a reasonable explanation
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