Undue Influence and the Burden of Proof - Anastasia Jones
Should an end-of-life gift or testamentary disposition be set aside if it is the result of coercion? You likely answered with a resounding “yes”—and Ontario courts would agree. An easy question with a clear answer.
However, the legal reality is much trickier. Recent caselaw shows that undue influence is a remarkably high bar that is dependent on subtle circumstantial evidence.
Why is this, and what does it mean for litigants?
Basic Principle
Undue influence is an equitable doctrine that can be used to set aside a Will or inter vivos transfer when there is sufficient evidence demonstrating that the transfer or testamentary document is not what the donor or testator actually wanted.
Burden of Proof: Inter Vivos Transfers
For inter vivos gifts involving a relationship of trust and influence, there is a rebuttable presumption of undue influence. This is because there is greater risk to the gift-giver when the individual is alive and probably in need of their own assets and possessions for their own survival.
(Fair enough: if I leave you my High Park mansion in my Will, I won’t have any use for it by the time it comes your way. On the other hand, I may well need to sell it during my lifetime to fund several years in a top-notch retirement home.)
Abbruzzese v Tucci, 2024 ONSC 957 shows that, in practice, triggering the presumption of undue influence does require some evidence. Once factors demonstrating undue influence have been adduced, the recipient must then be able to show, on the balance of probabilities, that the gift was the result of “free, full, and informed thought” (at para 287).
The Undue Influence Exception
Undue influence and fraud in testamentary dispositions are even trickier. Here, there is no presumption, and the burden of proof remains firmly with the party challenging the Will.
Recent case law has shown that this burden of proof applies to all testamentary documents, not just wills. A Power of Attorney document can be rendered invalid through undue influence; and so can beneficiary designations: see Stewart v. Zawadzinski, 2023 ONSC 387 and Durand v Hamilton, 2024 ONSC 2914, respectively.
Be warned: this is a high bar! Selfish manipulation, persistent influence: these do not count. You can be a treacherous jerk and try your hardest to get someone to change their testamentary documents and still not have exercised undue influence.
So, what qualifies? Undue influence entails coercion that cannot be resisted and destroys free agency to such a degree that the Will would not exist in its current form unless that coercion had been exercised. In essence, the person attacking the Will must establish that the testamentary documents reflect the intentions of the coercer, and not of the deceased.
The situation can be quite different if someone’s capacity is waning. (This will be the subject of my next blog post!)
Private Coercion = Circumstantial Proof
While undue influence requires psychological force, it can be surprisingly difficult to spot. In the intriguing words of Thomas Atkinson, “undue influence is a subtle thing, almost always exercised in secret, and usually provable only by circumstantial evidence.” In other words, undue influence usually happens in private.
For this reason, it is sufficient for the party challenging a Will to demonstrate undue influence through surrounding circumstances.
Ever-Expanding Factors
How exactly to demonstrate the requisite circumstantial evidence, though? In Gironda v. Gironda, 2013 ONSC 4133, the Ontario Superior Court offered a list of factors to watch for:
· The testator is dependent on the beneficiary for their physical and emotional needs;
· The testator is socially isolated;
· The testator has experienced recent family conflict;
· The testator has recently experienced bereavement;
· The testator has made a new Will that is inconsistent with previous Wills;
· The testator’s Will changes are made simultaneously with changes to other legal documents (such as POAs).
These factors are active and shifting. In Tate v. Gueguegirre, 2015 ONSC 844, for instance, even more factors were introduced, including:
· The testator made substantial transfers of wealth prior to death;
· The testator used a lawyer previously unknown to them and chosen by the influencer;
· The lawyer receiving instructions from the influencer;
· The influencer receiving a draft of the Will prior to the testator.
This mutability is arguably helpful: it makes sense for the courts to fine-tune their approach, and these are sensible additions. But it is also potentially frustrating. Could more factors be added? Most certainly. Will more factors be added? Probably. Is it clear how and why these factors intersect? Not necessarily!
Proof of Undue Influence in Recent Caselaw
In fact, a recent decision from the Ontario Court of Appeal—Roe v Roe, 2024 ONCA 179—clarified that not all of the preceding factors need to be considered when weighing undue influence. Instead of methodically ticking off a “set list of considerations”, courts should “examine the circumstances to understand the nature of the relationship between the alleged influencer and the deceased” (at para 18). This is highly case specific.
It is probably obvious that not all factors are equal. Undue influence would be extremely difficult to prove in a situation where the testator had recently experienced a bereavement, for instance, but none of the other factors were present. The same might not be true, though, where an elderly person had a profound emotional and physical dependency on the influencing party.
In practice, caselaw shows that courts tend to group factors and take a comprehensive approach. In a spate of recent cases, including Slover v Rellinger, 2019 ONSC 6497, andCozza v. Venneri, 2022 ONSC 7053, a definite pattern emerges. An older person is rendered vulnerable through cognitive decline or illness; they subsequently become intensely dependent on an influencing party, who then commandeers the arrangements for a new Will that is markedly different from previous testamentary documents.
Conclusion
Where does this leave us? The warning to lawyers is clear: be mindful of “relationships of domination”, and only take instruction from your client. As for litigants, keep in mind that undue influence only sounds simple. In practice, it’s a thorny tangle with many possible snags.
Stay tuned for Part Two of this series next month, where we’ll take a look at the intersection between undue influence and capacity.
