Protecting a Will From an Undue Influence Claim Before It Is Made

The situation

Hanna had spent two decades building a surgical practice, and with it, a net worth she had never really stopped to add up. When she finally sat down with her accountant, the total came to roughly $3.6 million: a principal residence in Pickering worth about $1.1 million, retirement and investment accounts worth about $1.6 million, and close to $900,000 in savings she had been setting aside without a firm plan for it.

Hanna was single, had no children, and had never made a will. Her parents were her closest family. Her father, Tesfay, had spent thirty years building a construction company from a one-truck operation into a business worth several million dollars. Her brother, Abdi, had worked in the company since his twenties and had effectively been running it for the past several years as Tesfay eased toward retirement. Abdi also managed Hanna's day-to-day finances under a power of attorney for property she had signed years earlier, paying her bills and handling her banking during stretches when her surgical schedule left her no time for it.

Hanna wanted two things done at once. First, a will leaving the bulk of her estate to Abdi, with a smaller bequest to Tesfay. Second, a gift of roughly $900,000 to help Abdi buy out Tesfay's remaining share in the company as their father formally retired. She came to Treadstone Law to get both done properly, not because anyone had raised a concern, but because she had read enough to know that a will favouring the person who managed your money could invite exactly the kind of dispute she wanted to avoid.

The risk we identified

Undue influence is the legal doctrine that lets a court set aside a will, or a gift made before death, if it was not the free and voluntary act of the person who made it. It is different from a lack of capacity claim, which asks whether the person understood what they were doing. Undue influence asks whether someone else's pressure or control replaced their own judgment, even if their mind was perfectly sound.

Certain circumstances make a challenge more likely to succeed, and Hanna's plan touched several of them at once. Abdi held power of attorney over her finances, which is a relationship of trust that courts scrutinize closely when the attorney also stands to inherit. The will disproportionately favoured Abdi over Tesfay, her only other close relative. And the lifetime gift and the will pointed the same direction, toward the same person, within the same period of time. Courts examining a will challenge routinely look at lifetime gifts made around the same time as evidence of a pattern, not as a separate, unrelated transaction. A challenger does not need to prove the will was suspicious in isolation; a large gift to the same beneficiary shortly before or after strengthens the inference that something more than free choice was at work.

None of this meant Hanna's wishes were improper. She had good reasons: Abdi had built the company's future while she pursued medicine, and Tesfay agreed the buyout was fair. But good reasons are not self-proving once someone is no longer alive to explain them. If a will and a gift both favour the person who managed the deceased's affairs, and no one ever wrote down why, a challenger only has to point to the relationship of trust and the pattern of gifting to raise a serious question. Answering that question well, showing the gift and the will reflected Hanna's genuine, independent wishes, is a difficult thing to do after the fact with no contemporaneous record.

What we did

1. Met with Hanna alone. Every planning meeting was conducted without Abdi present, including the initial intake call. This is a basic but often skipped safeguard: a will drafted with the primary beneficiary sitting in the room, arranging appointments, or relaying instructions is far more vulnerable to a later challenge than one where the testator's instructions come directly and privately from the testator.
2. Documented the reasoning in Hanna's own words. We recorded, in detail, why Hanna wanted to favour Abdi: his years running the company, his role managing her affairs, and her own view that Tesfay's smaller bequest reflected his separate retirement savings and pension rather than any lesser regard for him. This reasoning was captured in dated file notes taken during the meetings themselves, not reconstructed afterward.
3. Separated the gift from the will as distinct, properly documented transactions. The $900,000 gift to help Abdi buy out Tesfay's company share was papered as a deed of gift, with an independent business valuation supporting the buyout price and clear language confirming it was an outright gift, not a loan, and not conditional on anything. Informal transfers between family members, by contrast, tend to leave exactly the kind of ambiguity a challenger can exploit.
4. Recommended independent legal advice for Abdi. Because Abdi was both the attorney under the power of attorney and the main beneficiary of both the gift and the will, we advised he obtain his own lawyer to confirm he understood the transaction and was not directing it. His lawyer's certificate confirming that independent advice became part of the file.
5. Reviewed and revised the power of attorney alongside the will. Rather than leave Abdi as sole attorney for property indefinitely, Hanna added a requirement that any transaction over a set value require a second person's sign-off, and named an alternate attorney. This reduced the appearance that Abdi had unchecked control over the same assets he stood to inherit.
6. Prepared a memorandum of wishes to accompany the will. This is not a legally binding document, but it lets a testator explain the reasoning behind an estate plan in plain language, for the benefit of anyone who reads the will after death. Hanna's memorandum, kept with her will, set out the family history and her reasons in her own words, consistent with what she had told us months earlier.

The outcome

Hanna's will and the gift to Abdi were both completed within a few months, well before Tesfay's retirement took effect. No dispute has arisen, and that is precisely the point of the work: the risk was real enough to be worth addressing, and it was addressed before it could turn into a claim rather than after.

What Hanna has now is a plan that can withstand scrutiny if it is ever questioned. If a future challenge alleged that Abdi pressured her into the will or the gift, the file shows private meetings, a documented rationale recorded at the time rather than reconstructed later, an independent valuation, independent legal advice for Abdi, and a power of attorney structure with a genuine check on Abdi's authority. None of that guarantees a challenge could never be brought. Ontario law allows most family members with a financial interest in an estate to raise a claim if they choose to. What careful documentation does is give the estate a strong, contemporaneous answer if one ever comes, rather than leaving Abdi to reconstruct Hanna's intentions from memory years after she is gone.

Tesfay's own estate planning, prompted in part by this process, followed a similar approach when he came in to update his will a few months later, formalizing the company transition and confirming in writing that the buyout price and terms matched what he and Abdi had agreed.

What you can learn from this