Notoriously tough to prove is the allegation of a testator being unduly influenced to make a will. The burden of proof lies with the objector, and corroborating evidence is required to discharge the evidentiary obligation.
Notwithstanding the difficulty one faces to establish undue influence, it is frequently a ground of attack in will challenge cases, often coupled with an allegation of lack of testamentary capacity. In Kozak Estate (Re), it was rather unusually the sole ground of attack, and it was successful.
The facts in brief are that late in life the testator met and fell in love with a much younger woman, and soon after made real property transactions and two wills favoring her, with the latter will made in contemplation of marriage (which marriage never happened). The testator’s sister and beneficiary under a prior will challenged the wills on the ground of undue influence.
The Court reviewed the law on the question, and in so doing highlighted that circumstantial evidence can be used to establish undue influence, with the types of relevant circumstances including:
- the increasing isolation of the testator including a move from his home to a new city which increased the respondent’s control over him;
- the testator’s dependence on the respondent;
- substantial pre-death transfer of wealth from the testator to the respondent;
- the testator’s expressed yet apparently unfounded concerns that he was running out of money;
- the testator’s failure to provide a reason or an explanation for leaving his entire estate to the respondent and excluding family members who would expect to inherit; and
- documented statements that the testator was afraid of the respondent.
The Court viewed the evidence of the propounder as having many inconsistencies, contradictions and unbelievable elements. In consequence, it did not rely on her testimony at all. No such credibility problems arose respecting the evidence of the objector’s witnesses.
The Court went on to assess and conclude that the objector had established undue influence. Among the critical supportive findings was that the propounder used the promise of marriage to control and manipulate the testator into providing economic benefits to her. Further essential indicia of manipulation were the isolation of the testator from friends and family and a change in the testator’s personality.
Pursuing this avenue to invalidate a will is no easy feat, particularly without direct evidence. What does not come as a surprise to me, however, is that the outcome in this case largely hinged on the credibility findings of the witnesses.
Thanks for reading and have a great day,
Natalia R. Angelini
Some other blogs on the issue that may be of interest are:
https://hullandhull.com/2016/08/undue-influence-revisted/