“Proving undue influence is not easy.”
Justice Barbara Fisher, Kerfoot v Richter, 2018 BCCA 238 at para 34
In keeping with Justice Fisher’s observation, allegations of undue influence often fail when a will is challenged because it can be very difficult to prove undue influence. The will challenger bears the burden of proof, and often is unable to establish that a third party exercised “great and overpowering” influence such that the testator’s will does not represent their own wishes: see Banton v Banton, 1998 CanLII 14926.
Even though it is only necessary to make out undue influence on the civil standard of proof – the balance of probabilities – it can be notoriously difficult to do. As noted in the most recent edition of Probate Practice:
“… it may be extremely difficult to decide whether or not the evidence in any given case is sufficient to prove undue influence. To distinguish among the different types and devices of pressure that the alleged influencer may bring to bear, particularly against those whose position or condition of health may make them peculiarly susceptible, and to say at what precise point the methods used ceased to be legitimate, is a formidable task.”
In light of how difficult it is to establish testamentary undue influence under the common law, the UK Law Commission recently recommended the creation of a new statutory provision which would give courts the power to infer undue influence. To read the proposed provision in full, see Appendix “A” at the end of this blog post.
In its final report on Modernizing Wills Law, released in May of 2025, the Commission noted that the objective of the proposed legislative provision would be to provide better protection to vulnerable testators from financial abuse. The court would be able to infer undue influence, even if it was not proven. As a result, the onus would be placed on the alleged influencer, being “the person best placed to speak to their own role in the will being made … to displace [the] conclusion” of undue influence.
However, before the court would be able to exercise its power to infer undue influence, the Commission recommends that the will challenger be required to meet an evidentiary threshold. Sufficient evidence to establish reasonable grounds to suspect that undue influence was exerted by the alleged influencer would be required. In determining whether this threshold has been met, the draft legislation directs the court to “have regard to any evidence” about a number of considerations, including:
- the conduct, in relation to the making of the will or change, of the person alleged to have exerted undue influence over the testator;
- any relationship of influence between the person and the testator; and
- the circumstances in which the will was made.
The Commission also explains in the report that testamentary undue influence could be inferred based on other factors that the court considers relevant, rather than the factors set out in the legislation. The court would retain discretion to determine what factors are salient to establishing undue influence on the specific circumstances of any given case.
However, the court would not be able to infer undue influence if the contrary is proven on the balance of probabilities, meaning it has been established that “the testator acted free of coercion.”
If enacted, this statutory provision would supplement the common law doctrine of undue influence, rather than replace it. The Law Commission also does not propose changing the type of conduct that may be recognized as constituting undue influence. The draft provision confirms that undue influence refers to a will being “made as a result of the person overpowering the testator’s volition (without convincing the testator’s judgment).”
The new statutory provision is part of a Wills Bill that has been put forward by the Law Commission; it has not yet been passed into law. At this time, the government is giving the report “detailed consideration,” as noted in the government’s initial response.
The UK is not the only jurisdiction to entertain the concept of shifting the burden of proof applicable to undue influence. In British Columbia, section 52 of the Wills, Estates and Succession Act requires the propounder of a will to disprove undue influence in a specific situation – when the person challenging the will has shown that the testator “was in a relationship of dependency with the person alleged to have exerted undue influence, or one in which the potential for domination existed”: see Kerfoot.
The Law Commission’s new report raises an interest question – in Ontario, should the Succession Law Reform Act be updated to permit the courts to infer undue influence? Does the common law approach to testamentary undue influence provide testators with sufficient protection from financial abuse, given how difficult it typically is to prove undue influence? This is a question that may warrant consideration sooner rather than later, particularly in light of the great wealth transfer that is already ongoing.
Thank you for reading and have a great day!
Ian.