Undue Influence and Ontario Wills: What You Have to Prove

You may have noticed that a will changed late in life, shortly after a relative or caregiver became closely involved. It is natural to wonder whether the person who died was pressured. Ontario law treats this as a serious allegation, and it sets a demanding standard for proving it.

This article explains what undue influence means for a will, who has to prove what, how capacity is often raised alongside it, and the early steps people can take. Every case turns on its own facts, so it is worth speaking with a lawyer about yours.

What undue influence means for a will

In the context of a will, undue influence is not ordinary persuasion, advice or even strong encouragement. Testamentary undue influence means outright and overpowering coercion of the person making the will. The idea is that the will no longer reflects the deceased's own wishes because their will was overborne.

The person attacking the will must prove undue influence on a balance of probabilities. That means showing it is more likely than not that coercion occurred.

Being close to the deceased, helping with their daily life, or ending up as the main beneficiary is not enough by itself. Those facts may be part of the picture, but the question is whether the deceased was coerced.

Who carries the burden of proof

Will challenges are often built on several grounds, and the burden of proof is not the same for each. The person putting forward the will has the legal burden of proving due execution, knowledge and approval, and testamentary capacity.

Once due execution is proved, there is a rebuttable presumption of knowledge, approval and capacity, which puts an evidential burden on the challengers. If the challengers introduce evidence of suspicious circumstances, the legal burden goes back to the person propounding the will.

Undue influence is the exception. The burden of proving it stays on the people attacking the will, and suspicious circumstances do not shift it.

Lifetime gifts versus wills

People sometimes hear that undue influence can be presumed, and that is true in one setting. The rebuttable presumption of undue influence applies to lifetime (inter vivos) transactions, not to wills.

So a challenger to a will gets no presumption and must prove coercion. If your concern is about a gift or transfer made while the person was alive, such as a transfer into joint names, different rules may apply, and a lawyer can help sort out which ones.

Capacity, and getting the will tested

Undue influence is often raised alongside testamentary capacity because the same facts, such as age, illness or dependence on a caregiver, may bear on both. Capacity requires a sound disposing mind. The person must understand the nature and effect of the will, recollect the nature and extent of their property, understand what they are giving, remember the people they might be expected to benefit, and, where applicable, understand the claims of those being excluded.

Two procedural tools matter early on:

• Rule 75.06: before the court will require a will to be formally proved, the challenger must adduce, or point to, some evidence that, if accepted, would call the will's validity into question. This is a minimal evidentiary threshold.
• Notice of Objection: before a certificate of appointment of estate trustee is issued, anyone who appears to have a financial interest in the estate may file a Notice of Objection (Form 75.1) with the registrar or the Estate Registrar for Ontario, stating the nature of their interest and of the objection.

If the Registrar tells the probate applicant that a Notice of Objection has been filed, the applicant must send a notice to the objector (Form 75.3) and file a copy with the court along with an affidavit of service. You can also file Form 74P to ask the court to notify you when someone starts a proceeding involving the estate, if you have a financial interest.

Other routes to know about

A will challenge is not the only path. A dependant, such as a spouse or a child the deceased was supporting, may apply for support if adequate provision was not made. The deadline is generally six months after the grant of letters probate or letters of administration, although the court may allow a late application against the part of the estate still undistributed.

Adult, independent children are not dependants for this purpose, and there is no statutory duty to provide for them in a will.

Contested estate matters in certain areas can also be referred to mandatory mediation under Rule 75.1 unless the court grants an exemption. The Ontario government says the program operates in Toronto, Ottawa and Windsor. Which rules apply to you depends on where the matter is heard.

What to do next

• Write down what you observed and when, including who was involved in arranging the will.
• Gather documents: earlier wills, the current will, and anything showing the deceased's health around the time of the change.
• Note the names of people who knew the deceased well and may have relevant knowledge.
• Check whether probate has been applied for, since anyone who appears to have a financial interest in the estate may file a Notice of Objection before a certificate is issued.
• Keep the six-month dependant support deadline in mind if it may apply to you.
• Speak with a lawyer early about the evidence you have and the grounds that fit it.

Because undue influence is hard to prove and the burden stays with the challenger, a lawyer can help you weigh the evidence and decide whether to raise it, along with capacity or other grounds. No outcome can be assured.

Frequently asked questions