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Tuesday, December 14, 2010

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.


  1. It seems to me that people use the term "Undue Influence" as a last ditch effort to try to bully their way into getting something from the "Will". I've just been reading that if your trying to use "undue influence in a "Wills Variation" or to change a designated beneficiary of a Life Insurance it has to have concrete evidence and not presumed to be a case of "Undue Influence".

    So it is definitely a lot harder that people thing to use "undue influence". I have been researching this because I'm going through a court dispute with my stepkids in their dad's estate. They want the Pension fund and Life Insurance brought into the estate even though I was the sole beneficiary. So I'm thinking they'll probably try the "undue influence" card. Even though they know it's not true they'll stop at nothing. So good to know that it won't fly.

    I'm reading some of the great lengths people can go and it's still not called "undue influence" . So considering my wonderful husband and I never even fought I'm sure they won't be trying this when they see how hard it is. And it's actually a serious allegation if unfounded and judges are seeing right through this. One judge charge the plaintiff with 100% court costs for trying this when it was so obvious it wasn't true.

    1. You're right on all counts. Undue influence is really hard to prove, but people try it anyway. People can be absolutely blind to the facts when they don't like someone, or resent someone, and just want to punish that person.

      One of the reasons I always encourage readers to consult an experienced wills lawyer is that we know how to document our files to ensure that claims of undue influence and/or mental incapacity will not succeed. This is achieved in large part by carefully questioning our clients about their intentions and documenting them clearly in our files. The files are then available if the will is contested.

      You are also right about the costs. In the old days, pretty much anyone fighting over an estate had their fees paid from the estate. Those days are long gone.


  2. My sister contacted a lawyer 4 times and drove my mother to his office. Sat with her while making the will and even provided hand written notes to the lawyer saying this is what mother wants. They called her family doctor who wrote an opinion letter that said my mother could make financial decisions? Not that she could make a will. No capacity assesment was done. My sister also wrote chewues on mom's account as far back as 2007 some as high as 20K to herself. The will was made in 2009. Also her son somehow paid off his mortgage 6 years after buying his house 400K and he's a janitor. She passed accounts in 2014, but said she had only been POA since 2011 Nov. I am claiming undue influence fraud and other things. We only recently learned about the cheques to herself in 2007. Mom had uncontrolled diabetes and vascular dimentia diagnosed in 2011, but as a paramedic I saw signs of problems as far back as 2006. She also has seizures and when she woke up she would hand people money. Do I have a case for Undue Influence? Sister died 2 years ago, never got to enjoy trhe whole pot. Mom just died 3 weeks ago. Fighting my asshole brother in law. not to mention there was a previous will done back when mom was sane

    1. It's pretty tough for me to know whether you have a case for undue influence based on just one paragraph. This is something I talk over with clients for quite some time before making a recommendation. But let's see what we can do with the information you've provided.

      You mentioned that your sister was writing cheques to herself and was involved in your mother's will preparation. You might be able to make a case that your Mom was controlled by your sister in many ways. That could well result in a finding of undue influence. You would need quite a bit more detail.

      It might be a good idea to tie the undue influence claim with lack of testamentary capacity. I say this because your mom had at least one diagnosis of dementia. At least look into it.

      I certainly hope you're not trying to navigate this case on your own. I really hope you're working with a lawyer. If not, try to find one who does A LOT OF wills and estates work and is not just dabbling in it.

      When you allege undue influence, there are two major hurdles to jump. One is that you have to go to chambers (open court but not a whole trial) to prove that you have a genuine issue that needs to go to trial. If you win at chambers, you prepare for trial. If you lose in chambers, your case is over. I suggest that you work with a lawyer to get this through chambers.

      Often matters get settled once the chambers application has taken place. Also, the lawyer will guide you as to claiming costs back from the brother-in-law if you win at chambers.

      Best of luck.


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