What is undue influence?

It's well known that in order to make a valid will, a testator must have mental capacity. But that's not the only requirement; the testator must also make the will voluntarily. If the testator was forced by someone else to include certain gifts in his or her will that the testator didn't really want to include, this is called undue influence.

It means that the will is less a reflection of what the testator wants and more a reflection of what someone else wants.

This is one of the reasons that a beneficiary of a will and the spouse of a beneficiary of a will are not allowed to act as witnesses to a will (if they do, their gift is void though the will is valid). Disallowing them as witnesses reduces the opportunity for them to force the executor to sign a will that leaves the estate to them.

There are plenty of ways in which a person might influence a testator, particularly one who is sick, fearful or lonely. The person might use violence or threats, though the Canadian case law is very clear on the fact that undue influence can and does happen without threats or violence. It could involve making false promises, or simply pressuring without letting up. The courts have said that some amount of begging is ok though!

If undue influence has resulted in the testator making certain gifts in his will favour of the influencer, that amounts to grounds for challenging the will. A judge will not grant probate if he or she believes that the testator was coerced into making the will that way, even if the testator had mental capacity. This makes it clear that undue influence is a separate concept from general testamentary capacity.

Undue influence is certainly a common term when it comes to clients wanting to contest a will, but it's important to understand that the person saying that undue influence existed has to prove it. They can't simply demand that the executor or beneficiaries show there was lack of undue influence; the person attacking the will has the burden of proof. This is no easy task, particurly for wills that were made quite a long time before death. That undue influence exists must be proved on the balance of probabilities (the civil test) as opposed to beyond a reasonable doubt (the criminal test).

If you're considering challenging a will on the basis that someone coerced the testator into making the will this way, or changing his or her will, I recommend that you sit down with a lawyer who has done quite a bit of estate litigation. You should understand that this isn't an easy case to prove. Your legal fees aren't going to be covered by the estate.