The Quebec Court of Appeal recently ruled on a case involving undue influence and found that there is nothing wrong with influencing a testator, so long as it does not amount to undue influence.

In the recent case of Thivierge v Thivierge 2024 QCCA 54 the Quebec Court of Appeal was asked to rule on a case where the testator wrote a will prior to death which give one of his brothers a gift he had previously promised to his other brother. In the lower court case, the Judge determined that there was undue influence despite there being no evidence of undue influence. The Court of Appeal noted that the lower court Judge had relied on the report of a social worker which said that the testator had been subjected to pressure from one of his brothers. However, this report did not specify which brother had exerted the pressure and had not included evidence of that influence amounted to undue influence. The Court of Appeal noted that the lower court Judge erroneously determined that the influence must have been exerted by the brother in whose favour the will was drafted, and that the influence must have been undue. The Court of Appeal noted that “Le simple soupçon que le testateur ait été soumis à une pression indue n’est pas suffisant pour annuler un testament”, which is to say that the simple suspicion that a testator was subjected to undue influence is not enough to invalidate a will.

The Court of Appeal noted that, “Il n’y a rien d’illégitime ou d’illicite à tenter d’influencer une personne dans la rédaction de son testament. Toutefois, sa validité peut être contestée lorsqu’il est établi que le testateur a été soumis à une pression indue. De la même manière, la pression indue – ou captation – peut être invoquée pour annuler un acte de donation. La captation, qui s’assimile à de la fraude, se manifeste par des mensonges, des calomnies, des tromperies, des ruses ou de fausses déclarations délibérées qui amènent le testateur ou le donateur à prendre des décisions qu’il n’aurait pas prises autrement.”

In saying this, the Court noted that it is not illegitimate or illicit to influence a person in the writing of their will. The Court noted that the validity of the will can, however, still be questioned if it is established that the testator was subjected to undue influence rather than just influence, and reiterated that that influence exerted must be akin to fraud in order to be declared undue.