Undue Influence and Wills in Ontario

When an older relative changes a will or transfers property late in life, and a caregiver or one family member benefited, it is natural to wonder whether pressure was involved. Undue influence is a legal allegation that pressure affected someone's decisions, and whether it applies depends on the facts.

The law treats wills and lifetime gifts differently. This article explains the difference, who carries the burden, and the kinds of evidence that matter, so you know what you would need to show.

Wills and gifts are treated differently

If undue influence is alleged against a will, the burden is on the party attacking the will. That means that if you suspect pressure, you are the one who must prove it.

For gifts and transfers made while the person was alive, the approach is different. A presumption of undue influence arises where the relationship between the giver and the receiver carries potential for domination. The receiver must then show the gift resulted from the giver's full, free and informed thought.

Related grounds that often travel with undue influence

Undue influence claims are often paired with questions about capacity and knowledge. The party defending a will must prove due execution, knowledge and approval of the contents, and testamentary capacity.

A challenger can meet an evidential burden with evidence of suspicious circumstances that, if accepted, would tend to negative knowledge and approval or capacity. The legal burden then reverts to the party defending the will. Where suspicious circumstances raise doubt about capacity, that party must prove capacity on a balance of probabilities.

The capacity test asks whether the person understood the nature and effect of a will, the property being disposed of and the claims to be given effect to, with no disorder of the mind poisoning affections and no insane delusion influencing the disposition.

Evidence that tends to matter

Courts decide on evidence, so what you can document is more useful than what you believe. Examples of what people try to gather:

• Medical and care records showing the person's health, memory and vulnerability around the time of the change.
• Evidence of who arranged the will or transfer, who attended appointments and who was present at signing.
• Evidence on whether the person received independent advice. This helps a receiver defend a gift but is not required in every case, and corroborating evidence is needed to rebut the presumption.
• Bank records, especially for withdrawals, transfers and joint accounts.
• Messages, emails and statements from friends, neighbours and health workers about what the person said and wanted.
• Evidence on witnesses and signing. Proof of due execution looks for two witnesses present at the same time who saw the testator sign.

Gifts, joint accounts and powers of attorney

A gratuitous transfer from a parent to an adult child is presumed to be held on resulting trust for the parent. The child bears the burden of rebutting it, on a balance of probabilities, by showing the parent's actual intention at the time of transfer. This presumption has been applied to bank accounts put into joint names with adult children, and the court weighs all the evidence of intention, including the terms of any power of attorney granted to the receiver.

An attorney for property owes fiduciary duties, including the core duty to act exclusively for the grantor's benefit. Where the attorney is also the estate trustee, beneficiaries have been allowed to seek leave to obtain an accounting for the period before death. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

If someone is still alive and you worry about serious harm to their finances, the Public Guardian and Trustee must investigate allegations that a person is incapable of managing property and that serious harm is occurring or may occur. The helpline is 1-800-366-0335.

What to do next

• Write a timeline of the person's health, the changes to the will or accounts, and who was involved.
• Request or preserve records you are entitled to see, and keep copies of messages and statements.
• Identify independent witnesses, such as the drafting lawyer, doctors, friends and caregivers.
• Do not confront the person you suspect or move assets yourself before getting advice.
• See a lawyer promptly to discuss deadlines, whether the claim concerns a will or a lifetime gift, and costs, which come out of the estate only where public policy considerations apply.

Frequently asked questions