What Is Undue Influence in an Ontario Estate Dispute?

If a caregiver, a sibling or another person was close to the deceased near the end of life and the will suddenly favours them, it is natural to wonder whether the deceased was pressured. Suspicion alone does not decide a case, though.

This article explains in plain terms how undue influence is approached, who has to prove what, and what steps may matter early on. It is general information, not a prediction about your case.

What undue influence means

Undue influence is a separate ground for challenging a will, and whoever alleges it has the burden of proving it. How this applies depends on your situation, so it is worth confirming with a lawyer.

Undue influence is separate from capacity. A person can understand their property and family and still have been pushed into a decision. Capacity requires the testator to understand the nature and effect of a will, recollect their property, understand what they are giving, and remember the people they might be expected to benefit.

Who has to prove what

Whoever alleges undue influence has the burden of proving it. That is a real hurdle, because the pressure usually happened in private.

Other parts of a will challenge work differently. The person putting forward the will has the legal burden on due execution, knowledge and approval, and testamentary capacity. Once due execution is proven, a presumption helps them, but evidence of suspicious circumstances shifts the legal burden back to them.

Before the court will order proof of a will, you must meet a minimal evidentiary threshold: some evidence which, if accepted, would call the will's validity into question.

What courts look at

Courts decide on the evidence in each case. The person putting forward the will has the legal burden on due execution, knowledge and approval, and testamentary capacity, while whoever alleges undue influence has the burden of proving it.

• Whether due execution has been proven.
• Whether there is evidence of suspicious circumstances.
• Who carries the burden on each issue.
• Any health condition that may affect capacity.

Once due execution is proven, a presumption helps the person putting forward the will, but evidence of suspicious circumstances shifts the legal burden back to them. A disorder that may affect capacity is considered when applying the capacity test, and it is an error to infer lack of capacity from alcohol or drug use alone. If a will was not signed properly, the Superior Court of Justice may order that a document or writing that was not properly executed is as valid and fully effective as the deceased's will. Whether that applies to you depends on your situation, including when the person died, so it is worth confirming with a lawyer. Formal defects and undue influence are different issues.

Lifetime transfers and powers of attorney

Pressure sometimes shows up before death, in gifts or joint accounts rather than the will. A gratuitous transfer from a parent to an adult child, including into a joint account, is presumed to be held on a resulting trust for the parent's estate. It can be rebutted by evidence, on a balance of probabilities, that the parent intended a gift at the time of the transfer.

For a transfer to a minor child, the starting point is instead the presumption of advancement, which means a gift. Courts weigh later statements of intention, the bank documents, who controlled and used the funds, any power of attorney, and tax treatment.

If a caregiver or sibling acted as attorney under a continuing power of attorney, the duties of a guardian apply once the grantor is incapable. These include acting diligently, honestly and in good faith, and keeping accounts. The court may order an attorney to pass accounts.

Deadlines and next steps

The basic limitation period is two years from the day the claim was discovered. Ontario courts have held a will challenge brought more than two years after the death, with no discoverability issue, to be statute-barred. A notice of objection (Form 75.1) can be filed before a certificate of appointment of estate trustee is issued.

• Write down a timeline of who was involved and when.
• Keep the will, earlier wills, and any bank or care records you can lawfully access.
• List people who saw the deceased regularly and could be witnesses.
• Note the date of death and the date you first learned of the will.
• Speak with a lawyer about the deadline and the evidence before taking action.

Frequently asked questions