Undue Influence and Capacity - Anastasia Jones
In last month’s post, we explored the burden of proof when it comes to undue influence and will challenges. This month, we’ll be digging a bit deeper into examining the relationship between undue influence and capacity.
Incapacity and Will Challenges
A Will executed when the testator lacked capacity is no Will at all—or not a valid one, at least. The reason for this is likely obvious: a Will is an expression of the testator’s intentions. And to form and express these intentions the testator must understand:
· The nature and effect of making a Will;
· The type and extent of their property; and
· The individuals with a claim on their Estate and the nature of those claims.
So, can a Will be challenged on the grounds of lack of testamentary capacity? Absolutely.
Incapacity and Undue Influence
While testamentary capacity is stand-alone grounds for a Will challenge, it is also an integral aspect of claims of undue influence. In practice, it is difficult to successfully challenge a will on the grounds of undue influence without also establishing lack of capacity.
To demonstrate why, consider two relatively recent decisions from the Ontario courts with clear similarities—but starkly different conclusions.
Abbruzzese v. Tucci, 2024 ONSC 957
This case centered on the Will of Maria Iannarelli, an elderly widow with two adult daughters: Angela and Bernadette. In 2016—two years before her death in 2018—Maria executed a new Will, replacing a previous version from 2007. While the 2007 Will benefitted both of her daughters equally, the 2016 Will favoured Bernadette. Maria left her house to Bernadette, and further cemented this gift by transferring the home into a joint tenancy at the time that she executed her later Will.
Angela argued that Maria became dependent on Bernadette in her final years, and that both the Will and the inter vivos transfer of the house were the result of Bernadette’s exercise of undue influence predicated on Maria’s lack of capacity. (Maria struggled with ailing health and cognitive decline, but did not receive a formal diagnosis of dementia.)
The Court agreed with Angela, overturning both the Will and the inter vivos transfer. According to Justice Gilmore, Bernadette had exercised a plan of coercion, persuasion, and indoctrination to convince her mother that one daughter (Angela) was uncaring and undeserving, while the other (Bernadette) was selfless and deserving. In Bernadette’s carefully executed scheme, Maria’s vulnerability and dependency on Bernadette increased in tandem.
Justice Gilmore’s reflections on capacity are especially interesting. She clarified that undue influence does not stand or fall on the issue of testamentary capacity (at para 271). (See Slover v Rellinger, 2019 ONSC 6497 for a recent, and fascinating, analysis of undue influence coexisting with testamentary capacity.) However, while there was conflicting evidence on the issue of Maria’s capacity, the Court ultimately held that Maria lacked capacity at the time that she executed the 2016 Will and inter vivos transfer. This allowed Bernadette to coercively erode Maria’s agency until she could only parrot Bernadette’s wishes without truly understanding them.
In short, Maria became physically, emotionally, and eventually intellectually dependent on Bernadette to the degree that she lacked free will.
Cozza v. Venneri, 2022 ONSC 7053
In contrast, consider a case involving another Italian-Canadian widow living in Toronto: Assunta Cozza. Assunta made a Will in October 2016 mere weeks before she died, replacing an earlier version from 2008. While Assunta’s 2008 Will provided equally for a number of family members, including her siblings, the 2016 Will left everything to Assunta’s stepson, Stefano.
After Assunta’s death, her brother, Franco (a beneficiary under Assunta’s 2008 Will) challenged the 2016 Will on the grounds of undue influence. According to Franco, Stefano isolated Assunta as she descended into ill health and forced her to change her Will.
The Court disagreed, holding that Assunta’s 2018 Will was not the product of undue influence. Justice Gilmore clarified that because Stefano lived with Assunta and provided support as her health failed, Maria was vulnerable, and the opportunity was ripe for undue influence. For this reason, the decision turned on capacity. While there was evidence that Assunta struggled with some cognitive decline, Justice Gilmore concluded that she had the requisite capacity when she executed her 2018 Will.
In doing so, Justice Gilmore rejected the plaintiff’s characterization of Assunta as a “captured bird” controlled by Stefano (at 181). Assunta remained, to the end, strong-willed and independent of mind.
Conclusions
What can these decisions tell us about the interplay between capacity and undue influence?
In short, it is remarkably difficult to establish undue influence where a testator had full capacity. This is because undue influence entails coercion to such a degree that the impugned document reflects the will of the influencer and not the testator. This is a high bar indeed. And, practically speaking, it is difficult to enact this level of coercion on an individual who retains full agency and free will.
In theory, a testator can have capacity and lack free will. But, realistically, this is rare. In undue influence cases, vulnerability, and dependence form a dense knot—with incapacity at the center. And this incapacity, in turn, comprises a messy snarl of emotional, intellectual, and (often) physical weakness, compounded by isolation.
While testamentary capacity is not the only deciding factor in will challenges on the basis of undue influence, then, it remains a key issue for litigators and litigants.
