In Canada, a position of influence is to be presumed in doctor-patient relationships, as noted by the Supreme Court of Canada in Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353. This presumption only applies to inter vivos transactions though, and does not extend to testamentary gifts.  

Nevertheless, healthcare professionals are typically encouraged to waive legacies bequeathed to them by patients, or to redirect such gifts to charity, as noted in this article published in Canadian Family Physician. In fact, if a healthcare professional chooses to accept a legacy from a patient’s estate, they may be subsequently subject to professional discipline. For instance, the Daily Mail reported that in 2011, a psychiatrist in the UK was struck from the medical register after receiving a legacy of £1.2 million from a deceased anorexic patient and maintaining a “blurred and secretive” relationship with her for years prior to her death.  

Similarly, in 2023 an Australian family physician was found guilty of professional misconduct after inheriting a gift of $24 million from a patient: see Sydney GP who inherited $24m from patient found guilty of malpractice. While a will challenge was also mounted to set aside the lavish gift, it ultimately failed, demonstrating that while receiving a testamentary gift from a patient may be unprofessional or unethical, different criteria are used to determine whether such a gift is lawful. 

Simply because receiving a testamentary gift from a patient may make it appear that a medical professional exercised some influence on the patient, a gift will not be set aside on the basis of perception alone – there must also be actual evidence of wrongdoing. On this point, the Ontario Court of Appeal confirmed in Chappus Estate (Re), 2009 ONCA 279 that undue influence will not be presumed if a patient leaves a sizeable gift to their doctor. The physician in this case inherited more than $1 million from his patient, a gift worth approximately half of the patient’s estate. A will challenge related to the gift was ultimately dismissed because there was no evidence of undue influence.

Undue influence also cannot be presumed if a bequest is left to a friend who also happens to be a health care professional. On this point, the Superior Court of Justice noted earlier this year in Bell v. Randell, 2024 ONSC 579, that healthcare professionals are under no obligation to observe professional guidelines in their personal relationships, which are not therapeutic in nature. More specifically, Justice Hilliard was not persuaded that “simply by virtue of her employment as a RPN”, that the beneficiary was obligated to ensure that she was not named as a beneficiary in her friend’s will.

The deceased in Bell left the residue of her estate to a registered practical nurse who had assisted her as a personal support worker when they first met, and subsequently became a close friend. While another long-time friend of the deceased alleged that the RPN exercised undue influence to secure the testamentary gift, this claim was not established on the evidence. Ultimately, the RPN’s employment as a nurse did not really impact the court’s analysis related to undue influence, as there was no evidence that the deceased and the RPN were ever in an actual nurse-patient relationship, including when the deceased changed her will. 

Similarly, in Stephens v. Austin, 2003 BCSC 341, a will challenge commenced because the deceased left almost his entire estate to a friend who had nursed his brother failed. The facts in this case were complicated by the fact that the nurse also took care of the deceased for the last three years of his life pursuant to a home care agreement proposed by the deceased. During the will challenge, the deceased’s family argued that the arrangement between the deceased and the nurse constituted a breach of fiduciary duty. This argument failed, however, with the British Columbia Supreme Court affirming that a fiduciary relationship “does not give rise to a presumption of undue influence in the testamentary context” and is instead only a factor to be considered when undue influence is alleged. 

There should be no doubt that if a testamentary gift left to a healthcare provider is challenged on the basis of undue influence, the onus of proof will be on the challenger. Undue influence will not be assumed simply because the beneficiary is a healthcare provider, even if an imbalance in power can be inferred as a result of the relationship between the deceased and the beneficiary. As aptly stated by Michael Victoroff, an American physician who has served on the ethics committee of the American Academy of Family Physicians and was quoted in a recent Medscape article, “[p]eople are free to dispose of their estates in whatever way they see fit, and no law precludes a physician from accepting a bequest”.

Thank you for reading, and have a great day! 

Ian.