Q: In our town, two sides of a family were involved in a huge fight over the mother’s estate. In the end, the mom’s will was set aside because of undue influence. What does this mean?
A: The concept of undue influence is featured in several areas of Canadian law, notably in contracts and in wills.
A person interested in the estate of a deceased person may use undue influence as grounds to contest the will. Wills can be set aside in their entirety if it can be proven to a court that the will was drafted while the testator (person making the will) was unduly influenced by another person.
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A will is supposed to reflect the wishes of the testator as to what the person wants to happen to property after death.
Sometimes, someone close can get the testator to write a will that would benefit them personally, as opposed to what the testator really would like to do.
What amounts to undue influence varies depending on the province and the particular case.
However, there is a 2005 Saskatchewan case that provides a good summary of undue influence and what proof is required. I can do no better than to quote from Madam justice Wilson’s decision:
“To constitute undue influence in the eyes of the law there must be coercion …. To establish undue influence, it is necessary to prove that power was exercised over the testator, and it was the exercise of that power that resulted in the will being made. Undue influence can usually only be discovered by examining the circumstances leading up to the preparation of the will or by looking at the relationship that existed between the person benefiting from the will and the testator.”
What does all that mean? It means there has to be someone close to or in a special relationship with the testator who pressured her to draft the will in a certain way.
To prove it, you have to show that the person used that influence and that the use of such power resulted in the current version of the will.
This is hard to prove because usually there are only two people involved in the transaction. One is the testator, who is dead, and cannot give evidence to the court. The other is the person being accused of undue influence, who is unlikely to testify in a way harmful to his cause.
So, the courts look at all the background to the will to see if anything looks suspicious. If the suspected person benefits from the new will, this can raise suspicion as well.
Some examples are where one of the children of a testator convinces her to leave everything to that child, cutting out all other surviving siblings. Nurses, caregivers and housekeepers have all been challenged about their influence in past cases. Usually, the person making the will is ill or infirm, and is susceptible to suggestion.
Undue influence is a serious allegation and a highly reprehensible thing to do. Our courts do not look kindly on someone who takes advantage of a vulnerable person. Protection of the weak is one of the hallmarks of our system of justice, and this is an example of that concept.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
