Undue Influence and a Will: What Ontario Courts Look For

If you suspect a caregiver, a sibling or someone else pressured a loved one into changing their will, you may be wondering what it takes to prove it. Suspicion and unfairness are not the same as legal proof, and Ontario courts treat the two differently.

This article explains in plain terms what undue influence means for a will, who has to prove what, and how it differs from other grounds for a challenge.

What undue influence means for a will

Testamentary undue influence means outright and overpowering coercion of the person making the will. Courts look for evidence of actual coercion, not just a result that seems unfair or a suspicion that someone benefited. The person attacking the will must prove it on a balance of probabilities.

Ontario law also leaves people considerable freedom over who receives their property. Courts will void testamentary conditions that offend public policy, but they will not go behind a clear, unconditional choice of beneficiaries.

Wills are treated differently from lifetime gifts

People often hear that undue influence is presumed when someone dominant benefits. That presumption applies only to lifetime (inter vivos) transactions, not to wills. A person challenging a will gets no presumption and must prove coercion.

If the concern is a gift made while the person was alive, such as a transfer into joint names, a different analysis may apply. When a parent gratuitously transfers property, including into joint names, to an adult child, the law presumes the child holds it on resulting trust for the parent and so for the parent's estate, and the child bears the burden of rebutting that presumption. The question is the parent's actual intention at the time of the transfer.

Who has to prove what

This is why a challenge is often framed on several grounds. Evidence of suspicious circumstances can matter for capacity or knowledge and approval, but it does not by itself prove undue influence.

Capacity is a separate question

A person making a will needs a sound disposing mind. They 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.

A person can be vulnerable, ill or dependent on a caregiver and still have capacity. Medical and observer evidence about the person's understanding at the time the will was signed is therefore often central.

Starting a challenge and what to do next

Before a court will require a will to be formally proved, a person challenging it must adduce, or point to, some evidence that, if accepted, would call the will's validity into question, which is a minimal threshold. Before a certificate of appointment of estate trustee is issued, a person with a financial interest may file a Notice of Objection (Form 75.1). A person with a financial interest can also file Form 74P to ask to be notified of proceedings involving the estate.

• Write down what you saw and heard, with dates, about who was involved in the will and when.
• Collect the will, any earlier wills, and medical, bank and care records you are entitled to see.
• List people who dealt with the deceased around the time the will was signed.
• Check whether a certificate of appointment has been issued before deciding about an objection.
• Speak with a lawyer early about which grounds fit your evidence and which time limits apply.

Frequently asked questions