Undue influence has long been a central issue in estate litigation. At its core, it protects the autonomy of testators – ensuring that their true intentions, not someone else’s, determine the distribution of their estate.
Traditionally, courts have looked for clear signs of manipulation, most often found in relationships marked by dependence, isolation, or control. But as estate planning increasingly takes place through digital platforms, virtual meetings, and electronic documents, the indicators of undue influence are shifting. The lawyers of today face a new and unique challenge that was not nearly as prevalent as recent as 2020, pre-COVID-19: identifying red flags that don’t look like traditional coercion, but are just as powerful.
The legal test for undue influence is applied differently whether it is in the context of testamentary dispositions or inter vivos transactions, but generally, it must be proven, on a balance of probabilities, that the testator’s free will was overborne by acts of coercion or fraud (Seguin v. Pearson, 2018 ONCA 355). While the overarching legal test for undue influence has remained the same, the context in which it is applied has changed. Remote work, virtual witnessing (which is now permitted under Section 4(3) of Ontario’s Succession Law Reform Act), and digital document storage have created new opportunities for undue influence to occur – and for it to go undetected.
In the past, a lawyer could observe the body language, tone, and interpersonal dynamics of the testator during the in-person meetings. Now, video calls and electronic communication can limit the ability for the lawyer to pick up on those cues.
New Red Flags for Estate Professionals
While traditional signs of undue influence still apply – dependence, vulnerability, sudden changes to the Will – there are several modern red flags that estate planners must look out for:
1. Digital Isolation
Elderly or vulnerable clients may rely exclusively on digital communication tools managed by someone else. If access to the client is filtered through a single email address, video link, or device owned by a caregiver or relative, that is a serious warning sign.
2. Unusual Tech Proficiency or Third-Party Involvement
When a client who previously avoided technology suddenly embraces online Will platforms or digital signing with assistance from a family member, probe further. An individual “helping” set up the technology may also be directing or influencing the process.
3. Remote Witnessing Without Proper Safeguards
Virtual witnessing has made Will execution easier, but also riskier. Without a 360° view of the environment, witnesses cannot confirm who else is in the room or whether the testator is signing freely.
4. Sudden Digital Will Changes
Electronic Wills can be altered quickly and, in some platforms, without sufficient audit trails. A new version that significantly benefits one individual – especially if that person is assisting with the technology – should trigger a closer look.
5. AI, Deepfakes, and Digital Forgery
While still rare, the rise of AI-generated voice and signature tools means authenticity cannot be assumed. Estate professionals must verify the integrity of electronic signatures and consider using secure, time-stamped platforms.
Proving Undue Influence in a Digital Context
There are two main ways to establish undue influence in court: actual undue influence and presumed undue influence. Actual undue influence involves direct evidence showing that one party exerted improper pressure over another to influence their decision. Presumed undue influence arises in certain relationships where one party is in a position of presumed power, such a parent-child or solicitor-client relationship.
In the context of Will challenges, undue influence must be proven by the attacking party, with evidence that is typically relied on being the testator’s vulnerability, the nature of the relationship, isolation, dependency, and suspicious circumstances. The courts have increasingly relied on electronic evidence to help prove undue influence, including emails, text messages, digital photographs, social media messages, and electronically stored documents such as journals or financial records. The courts recognize that undue influence is often subtle and rarely is established through direct evidence, and as a result, it is typically inferred from circumstantial evidence, much of which now comes in digital form (Lamont v. Estate of Louis Fournier et al., 2025 NBCA 79).
Preventing Undue Influence in a Virtual World
While the risk of undue influence in the digital age is ever-growing, there are many steps that lawyers and practitioners can take that are tailored to the modern age that will help to mitigate that risk:
- Confirm independence early – Lawyers should ask their clients who initiated the meeting and how they found your contact information.
- Use separate communication channels – Avoid relying on a family member’s email or phone number for correspondence, ensure there is a point of contact that is solely used by the client.
- Schedule one-on-one follow-ups – Always ensure that you have at least one private meeting with the client – even if it is virtual. If it is virtual, ensure that the client shows a full 360° view of the room to confirm no one else is present.
- Record detailed capacity notes – Document the client’s understanding of the Will and the reasons for each decision.
- Employ secure digital tools – Use e-signature platforms that record authentication data and IP addresses.
Conclusion
Undue influence remains one of the most serious threats to testamentary freedom. Estate practitioners, now more than ever, must combine traditional legal vigilance with digital literacy – understanding how technology can conceal coercion or enable fraud. Ultimately, the same principle endures: a Will must reflect the free and informed intention of the person making it. Ensuring that remains true in the digital age is both a legal and ethical imperative.
Thanks for reading,
David Morgan Smith and Jason Avsenik (student-at-law)