Challenging a Will for Undue Influence in Ontario: What You Must Prove

You may have found out that a parent changed their will late in life, and the main beneficiary is a caregiver, a sibling, or someone else who was close to them in their last years. It is natural to suspect pressure. The law, though, separates what feels unfair from what a court can find was undue influence.

This article explains in plain language how Ontario courts approach undue influence: who has to prove what, what kinds of circumstances raise concern, and what evidence tends to matter. It is general information, not advice on your situation, and these cases turn heavily on their facts.

What undue influence means, and what it is not

In plain words, undue influence is about pressure that takes over someone's own decision, so the will reflects another person's wishes rather than the testator's. Feeling that a will is unfair is not the same thing. Whether particular conduct crosses the line depends on the facts, and a lawyer can help you assess it.

Undue influence is one of several separate grounds for challenging a will. Others include lack of due execution, lack of knowledge and approval of the contents, and lack of testamentary capacity. A challenge often raises more than one, and the rules on who must prove each one differ.

Who carries the burden of proof

The person putting the will forward must prove it was properly signed, that the testator knew and approved its contents, and that the testator had capacity. Once proper signing is shown, the court presumes the testator knew and approved the contents and had capacity.

Undue influence works differently. The Court of Appeal treats it as an affirmative defence, so the person attacking the will carries the legal burden of proving it. Suspicious circumstances do not shift that burden to the other side.

The standard for these issues is the balance of probabilities, but the court examines the evidence more closely as the seriousness of the suspicion increases.

Suspicious circumstances and presumptions

Suspicious circumstances can arise from how the will was prepared, from circumstances that call the testator's capacity into question, or from circumstances suggesting the testator's free will was overborne by coercion or fraud. A typical example is a beneficiary taking part in the preparation or signing of the will.

If suspicious circumstances are shown, the presumption of knowledge and approval is spent, and the person supporting the will must prove it, and capacity too if the suspicion goes to mental capacity.

Separately, a presumption of undue influence arises only where the relationship between the people involved is one in which one can dominate the will of the other. Where such a presumption arises, corroborating evidence is needed to rebut it. Whether a caregiver, relative or friend was in that kind of relationship depends on the facts, and a lawyer can help you assess it.

The threshold: you need some evidence first

Being an interested person does not give you an absolute right to force a will to be proved in solemn form. The challenger must first point to some evidence which, if accepted, would call the will's validity into question. For undue influence, the Court of Appeal has said a challenger must meet a minimal evidentiary threshold before the will is put to proof.

In one case, the Court of Appeal found no evidence of undue influence where the family members said to have influenced the testator were not in the city when the will was signed. That shows how opportunity and presence at the signing can matter.

Evidence that tends to matter

• Whether the person who benefits took part in preparing or signing the will.
• The nature of the relationship, including whether one person could dominate the other.
• Medical records and, in some cases, a retrospective expert opinion based on those records.
• Evidence from the drafting lawyer about how the testator seemed and gave instructions.
• Where the alleged influencers were when the will was signed.
• Who arranged the lawyer, attended the meeting or gave instructions. Courts look at the facts as a whole, so note these details even though they are not rules.

A diagnosis such as dementia does not by itself decide capacity. Capacity and undue influence are different questions, even though the same facts sometimes bear on both.

What to do next

• Write down a timeline: when the will was made, who was involved, and where everyone was.
• Collect what you already have: earlier wills, emails, medical letters, and names of witnesses.
• Do not remove or alter original documents, and avoid confronting the beneficiary before you have advice.
• Check deadlines early, because some estate claims are time-limited.
• Speak with an Ontario estates lawyer about whether you have enough evidence to meet the threshold and what the cost and risk of a challenge may be.

Frequently asked questions