The onus of proving undue influence is on the challenger. By its nature, undue influence is often very hard to prove. However, the court may resort to a presumption of undue influence in certain circumstances.

In a thought-provoking article in the December 2011 issue of The Lawyers Weekly, Adam Parachin, an associate professor at the Faculty of Law, University of Western Ontario, discusses the high onus to be met in undue influence cases, the application of a presumption of undue influence in certain cases, and the perils of strengthening the presumption of undue influence.

Specifically, Parachin states that the court’s increasing willingness to accept circumstantial evidence of undue influence possibly means that the need for a presumption is less obvious. Further, identifying “triggers” to the imposition of a presumption leads to a circular argument: “instances best meeting this requirement [to trigger the presumption] are those where the need for the presumption is the least apparent.”

Further, the application of the presumption may detract from the testamentary freedom of the testator. As noted by Parachin, the application of the presumption could disproportionately jeopardize wills that depart from the usual pattern of estate distribution, or wills that are not prepared in accordance with the usual protocols. In addition, testamentary freedom should extend not only to how one’s estate is to be distributed, but to who is to be included in the will making process. 

Finally, Parachin states that a strong presumption might facilitate questionable claims. The costs of defending these claims, and of rebutting the presumption, would bolster these questionable claims, and lead to compromises that might, in many cases, be contrary to the testator’s intention.

Let the debate begin.

Paul E. Trudelle – Click here for more information on Paul Trudelle