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, most often coupled with an allegation of lack of testamentary capacity. In the recent Krivokapic c. Boss decision of the Quebec Court of Appeal, the lower court decision being appealed had a rather unusual outcome where the two-pronged attack of incapacity and undue influence was successful on the latter ground but not the former.

The facts, in brief, are that later in life, after a failed first marriage, the testator met and married the appellant, and subsequently made a Will gifting the entirety of his estate to her should she survive him for more than 30 days. The testator’s daughter from his first marriage challenged the validity of the Will on the grounds of incapacity and undue influence. The Trial Judge declared the Will void, such that the estate is to be distributed in accordance with the Quebec rules of intestate succession, which would result in the daughter receiving two-thirds of the estate and the appellant receiving the remaining one-third.

In reaching the decision, the Judge had heard and read the testimony of numerous experts and factual witnesses. The daughter, her mother and the appellant were not considered to be particularly credible. Rather, much of the reliable evidence came from non-party witnesses. It was determined that although some cognitive diminishment was likely, the testator was capable to make the Will. However, the medical evidence evaluated led the Judge to find the testator susceptible to influence. Moreover, there were relevant circumstances that persuaded the lower court that the testator was unduly influenced to make the Will, being:

1. The exclusion of the daughter from the Will without explanation.
2. The Appellant’s negative attitude towards the daughter.
3. The Appellant’s sense of entitlement to the major part of the estate in light of her services to her husband.
4. Though capable to execute the Will, the testator was in a weakened cognitive state.
5. The testator had developed a physical and moral dependency on the Appellant by the time the Will was made.
6. The Appellant control of the testator’s social contracts.
7. The Appellant control of the testator’s finances.

The decision withstood appeal, with the appellate court being satisfied that the Judge conducted a thorough analysis of the evidence and based his conclusion on the collective factual considerations noted above and not the examination of individual acts in isolation.

Thanks for reading and have a great day,

Natalia Angelini