All About Estates

Challenging a loved one’s Will? You’re gonna need evidence

The recent decision in Taylor-Reid v Taylor may seem to be the typical case of an adult child claiming that, ‘dad’s new wife unduly influenced him to cut me out of his Will’, but, on a summary judgment motion, the court found that there was absolutely no evidence to substantiate the plaintiff’s claim. In fact, the evidence showed that, if there was undue influence, it may have been on the plaintiff’s part.

It is very difficult to establish testamentary undue influence; not only must the party alleging undue influence prove that the influence amounted to coercion, forcing the testator to execute a last will and testament (“Will”) that he or she would otherwise not make, but the party must also prove that the undue influence caused the testator to execute such Will. Taylor-Reid v Taylor is a great illustration of:

  1. how a summary judgment motion may be an effective way of dismissing a meritless claim and protecting clients from incurring further litigation costs; and
  2. the importance of evidence in corroborating material facts in dispute.

In September 2013, two years after the death of her father (the “deceased”), the plaintiff commenced a claim on the grounds that the deceased’s 2011 Will and his beneficiary designations on his TD bank accounts should be set aside as a result of the undue influence of the deceased’s second wife (the “defendant”). The plaintiff’s claim was based solely on whether the defendant had, “expressly or implicitly”, threatened to leave or divorce the deceased if he did not execute a Will leaving her his assets. In August 2014, the plaintiff amended her claim to further seek compensation for services she allegedly rendered to her father following his loss of leg function in the summer of 2010.

The defendant brought a motion for summary judgment on the grounds that the plaintiff had disclosed no genuine issue requiring trial. Her evidence was supported by the deceased’s long-time solicitor (the “deceased’s lawyer”), a neutral third party who had no interest in the outcome of the litigation.

The deceased had executed a number of Wills prior to his death in September 2011, all of which had been prepared by the deceased’s lawyer:

  1. a 2004 Will, which left the residue of his estate to the defendant;
  2. a 2010 Will, which distributed the residue of his estate equally between the plaintiff and defendant; and
  3. a 2011 Will, which left the residue of his estate to the defendant only.

In addition to bequeathing the residue of his estate to the defendant, whom the deceased described to be “the perfect mate”, he also transferred his beneficial interests in his TD bank accounts to her. Although he altered the beneficiary designation forms to appoint the plaintiff as the beneficiary of the TD accounts in 2010, he once again assigned the defendant as the beneficiary in 2011.

Justice DiTomaso considered the evidence of the plaintiff, the defendant and the deceased’s lawyer to analyze the deceased’s relationship with the parties, and whether he was the subject of the defendant’s undue influence. The court found that the defendant and the deceased had been in a long-term and loving relationship since 1999, but that the plaintiff and the deceased had a strained relationship. The plaintiff’s false allegation of sexual abuse against her father in 2004, false allegation that the defendant was committing elder abuse, alienation of her father from the defendant and her attempts to legally separate him from the defendant, all pointed to reasons why the deceased executed his 2011 Will. Not only did the evidence heavily weigh in favor of the defendant, but it also indicated that the plaintiff may have influenced her father to execute his 2010 Will, new power of attorney documents and beneficiary designation forms with respect to the TD bank accounts in her favour.

As such, Justice DiTomaso agreed with the defendant and found that the plaintiff’s evidence was not corroborated by “other material evidence” to establish undue influence that amounted to coercion that caused the deceased to execute his 2011 Will.

With respect to the plaintiff’s claim for compensation, the court found no evidence of the existence of an agreement for compensation or that the plaintiff actually provided services to the deceased. The court noted that even if she had provided services to the deceased, the plaintiff could not seek compensation for it as she acknowledged receiving $2,000.00 per month and several additional cheques from her father, while the deceased resided with her for a brief period in 2010. Overall, Justice DiTomaso found that there was no genuine issue requiring trial, and that the evidence submitted was sufficient for the court to fairly and justly adjudicate the dispute pursuant to rule 20.04 of the Rules of Civil Procedure.

The importance of evidence to corroborate a Will challenge claim cannot be underestimated as summary judgment motions are becoming a useful way of stopping frivolous Will challenges in their tracks.

About Anna Alizadeh
Anna was called to the Ontario Bar in June 2016. Prior to joining de VRIES LITIGATION LLP, she articled at a full service firm where she developed a strong background in litigation and alternative dispute resolution. Anna also worked on estate litigation files and estate planning matters, and co-authored a chapter on Physician Assisted Dying for Key Developments in Estates and Trusts Law in Ontario, 2015-2016 edition. She obtained her Honours Bachelor of Science in Psychology, with a minor in Biology, from York University, and her Juris Doctor from the University of Ottawa. While in law school, Anna participated in an exchange program in Paris, France, where she obtained her Certificate in French and European Union Law. Anna practices in the areas of estates, trusts and capacity litigation. She is fluent in Farsi and has a professional working proficiency in French. Email: