Challenging a Will based on undue influence

11 juin 2020 | Christopher Crisman-Cox

( Disponible en anglais seulement )

A Will is not valid if it is the result of « undue influence », but what exactly does that mean? Before going to court to challenge a Will on this basis, it is important to look closely at what exactly qualifies as « undue influence ».

Generally speaking, « undue influence » refers to a situation in which someone exerts an inappropriate level of pressure on a testator, to the extent that the testator ends up making a Will that goes against their true wishes.

It is a high threshold to establish. Crucially, there is no prohibition against asking someone to be written into their Will, or asking someone to change their Will. In fact, in most circumstances, it is perfectly permissible to continually pester, or even outright beg someone in order to receive a gift in their Will. A testator always has the option of simply declining such a request.

The line is crossed into undue influence only when someone is applying such significant pressure that it directly circumvents the true wishes of the testator. This can occur if the testator feels that they have no choice but to agree.

As an example, consider a situation in which an elderly parent is being cared for by one of their children, and has become entirely dependent on this child. In these circumstances, the elderly parent may legitimately decide that this child deserves a greater share of the parent’s Estate than the other children. If the parent then changes their Will accordingly, there would be no undue influence.

However, consider instead a situation in which the caregiving child uses the relationship of dependency inappropriately, and essentially forces the parent, against their wishes, to execute a new Will leaving the parent’s entire Estate to the child. The child might make use of the relationship of dependency in order to wield power over the parent, so that the parent fears disagreeing with the child and feels they must execute the new Will requested by the child. In this type of situation, the new Will would likely be invalid as a result of undue influence, and would ultimately be disregarded by a court.

However, it is also important to keep in mind the evidentiary challenges that arise in trying to establish undue influence. The burden of establishing undue influence lies squarely on the party challenging the Will. This means that to be successful, the party challenging the Will must produce sufficient evidence to convince a court that it is more likely than not that undue influence occurred.

This can be difficult if the circumstances giving rise to undue influence occurred behind closed doors. However, it is by no means impossible. Once all the relevant evidence is disclosed, including medical evidence, notes from the lawyer making the Will, testimony from third parties, etc., it may become clear that the Will is invalid as a result of undue influence.

If you have concerns regarding undue influence, or if you need advice or assistance with regard to challenging a Will or defending against a challenge to a Will, contact Miller Thomson’s estate litigation team.

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