The tension between testamentary freedom and undue influence makes ascertaining and proving a case of undue influence in Ontario and most parts of Canada a little complicated. This is true because, in most provinces, the onus of proving undue influence falls on the party who wishes to challenge the will, and the testator’s own evidence as to how the will came about is often unavailable. The facts relevant to how the will came about may only be within the knowledge of the alleged influencer. 

The threshold of proving undue influence is also high. It is not enough to prove that the alleged influencer had an opportunity to influence the testator and that this resulted in a benefit for the influencer. A party challenging a will must prove that undue influence was actually exercised. Suspicious circumstances surrounding the making of a will serve only to override the presumption that the testator had knowledge and approved the will when the will was duly executed. Those defending the will must then show not only that the testator had knowledge and approved the will, but that they had the capacity to make a will, and that the will reflects their independent wishes.   

In Hall v Hall (1868) LR 1 P& D at 481, the court distinguished between lawful influence and undue influence. Mere persuasion to make a will in favour of the influencer is not enough: 

To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like – these are all legitimate, and may be fairly pressed on a testator. 

Undue influence in the context of wills requires that “the testator’s volition has been overborne by another person, such that there was no voluntary approval of the contents of the will” – Feeney’s Canadian Law of Wills. There must be an act of coercion. These days, however, it is recognized that subtle or indirect psychological pressures that take advantage of a testator’s vulnerability may be sufficient to constitute undue influence. 

As discussed in Scott v Cousins (2001) 37 ETR (2d) 113 at para 114, undue influence may be inferred from proven facts surrounding the circumstances of making a will if they show that the testator was susceptible to influence by others due to impaired mental health. The fact that a will departs radically from the dispositive patterns of previous wills has also been regarded as having some probative value. 

In evaluating whether undue influence may be operating in a particular situation, consideration should be given to whether there is or has been: 

• isolation of the testator from relatives and other contacts 
• dependence on the alleged influencer 
• abuse of a relationship of trust and confidence 
• exploitation of the testator’s vulnerabilities, including declining mental and/or physical capacity; and 
• control of the information flow to the testator or misinformation given to the testator. 

Doing so will help those drafting wills insulate the wills they prepare against successful will challenges based on undue influence, and equally important, protect those who are most vulnerable when they are making their wills. 

Thank you for reading.  

Ian Hull & Susanne Myers