A U.S. Supreme Court judge once memorably remarked that he could not define obscenity but “I know it when I see it…” The concept of undue influence in estate litigation is similarly elusive (although perhaps less polarizing a topic than censorship of pornography!). Generally, a successful will challenge on the grounds of undue influence requires proof by the challenger (although this onus will be different in B.C. due to new legislation coming into force next year) on the balance of probabilities that the will was written as a result of coercion. But what does undue influence look like? And since undue influence is often exercised in private, what kind of evidence is required to prove its existence?
A recent decision of the B.C. Court of Appeal, Hix v. Ewachniuk, suggests that a finding of undue influence is possible even where the evidence is circumstantial. In that case, Sophie Ewachniuk signed a will a couple of years prior to her death. The will was written by her son, Theodore (a former lawyer). The will essentially provided Sophie’s two million dollar estate to Theodore, leaving nothing to her two daughters. Her previous will divided her estate equally amongst her three children.
The daughters were successful in challenging the will. The trial judge found that although Theodore cared for his mother, he was also a domineering and aggressive person. Sophie, on the other hand, was very vulnerable and had become virtually dependant on Theodore in a way that he was able to profoundly influence her decisions.
The B.C. Court of Appeal upheld the trial judge’s decision, noting that it was open to the trial judge to find that Theodore had exerted undue influence “not by threats or promises but by working on her over a period of time. She was in that way coerced into doing what she would not otherwise have done. That is a logical explanation for why the will was executed.” (at para. 13)
Undue influence in this particular case looks less like holding a gun to someone’s head and more like being subjected to a cunning advertising campaign of Don Draper’s. Another judge hearing the case might see things differently, though. As with any will challenge, proceed to trial with caution!
Thanks for reading,