All About Estates

Analysis of Undue Influence is Case Specific

The applicant in Roe v. Roe, 2022 ONSC 5821 (CanLII), was not successful in setting aside his mom’s will on the basis of undue influence and “insane delusions”.  He was the only son (of four) who was disinherited in his mom’s will.  This was a departure from the mom’s previous will which treated her four sons equally.  The applicant argued that his mom had been unduly influenced by his brother, Rick, who lived with mom his entire life.  The evidence on the application was that Rick could be controlling of his mom. Even though the applications judge found that suspicious circumstances existed at the time the will was made, the court did not find that the mom was unduly influenced or suffering from insane delusions. The applicant appealed to the Ontario Court of Appeal, which recently released its decision at Roe v. Roe, 2024 ONCA 179 (CanLII) (“Roe”) dismissing the appeal.

One of the grounds argued by the appellant was that the applications judge erred in ignoring relevant factors in the undue influence analysis.  The appellant pointed to the factors articulated in Tate v. Gueguegirre, 2015 ONSC 844 (CanLII) (Div. Ct) (“Tate”).  The Court of Appeal recognized that in Tate “the court helpfully provided a list of points it considered” when it undertook its undue influence analysis.  The list of points will be familiar to estate litigators and include: isolation of the testator, the existence of inter vivos gifts, and the failure to explain why certain family members were not named as beneficiaries.

The Court of Appeal held that, contrary to the appellant’s submission, “there is no set list of considerations that must be considered in all cases when considering an allegation of undue influence. Instead, the analysis of the issue is case specific and should examine the circumstances to understand the nature of the relationship between the alleged influencer and the deceased.” In the case of Roe, the applications judge relied on the applicant’s expert on elder abuse who determined that the mom was not susceptible to Rick and was not particularly vulnerable to him. The expert found that the mom and Rick had a “symbiotic relationship that seemed to work” and that she could manage Rick. The Court of Appeal found that there was no error in the applications judge relying on this evidence in the court’s analysis of undue influence.

Another ground of appeal was that the applications judge erred in her analysis of whether the mom was suffering from “insane delusions” at the time she made her will. The applications judge found that suspicious circumstances existed.  A finding of suspicious circumstances shifts the burden of proof back to the propounder of the will to satisfy that the testator had testamentary capacity and knowledge and approval of the contents of the will. The applications judge applied the reasoning in Banton v. Banton, 1998 CanLII 14926 (ON SC), that the fundamental question is “whether the belief should be characterized merely as being quite unreasonable, on the one hand, or as something that, in the particular circumstances, no one ‘in their senses’ could believe.” The applications judge also considered the issue as the question posed in Boughton v. Knight (1873) L.R. 3 P. & D. 64 (U.K.): “Can I understand how a person in possession of their senses could have believed the fact or facts that has impacted the will-making?”  The applications judge answered the question with “yes” and held that the mom was not suffering from insane delusions.

The Court of Appeal found that the applications judge reviewed all of the evidence and did not err in applying the legal tests.  There were factual reasons, grounded in evidence, why the mom disinherited the appellant.  The Court of Appeal noted that, while the applications judge found that the mom acted “irrationally and hyperbolically” at times, there was a factual foundation to ground her views.

The last ground of appeal advanced by the appellant was that the applications judge erred in relying on the evidence of the geriatric psychiatrists to find that the mom understood the nature and extent of her property.  The appellant argued that the applications judge abdicated her function as trier of fact in doing so.  The Court of Appeal disagreed and found it was open to the applications judge to rely on the evidence of the geriatric psychiatrists in conjunction with other evidence. The Court of Appeal noted that a testator does not need to know the precise makeup of her assets, but only in a general way the nature and extent of her assets.


de VRIES LITIGATION LLP is hiring!  If you are a dynamic litigator with 5+ years of experience and want to join a top estates and trusts litigation boutique firm, check out the job posting here.

About Karen Watters
Karen is a senior estates litigator who represents clients in a variety of proceedings including will challenges, dependant’s relief claims, guardianship applications, and powers of attorney disputes. Karen obtained her law degree from Queen’s University and was called to the Ontario Bar in 2011. More of Karen's blogs can be found at


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.