This Blog was written by: Alicia Godin, Estate and Trust Consultant, Scotiatrust

Historically the area of estates was not particularly litigious, but as families and financial circumstances become more complex, litigation involving estates has become more frequent. Frequently touted, but notoriously difficult to prove, is the allegation of someone being unduly influenced in making their Will.

A client of mine (let’s call him Derek) passed away leaving behind his (younger) common law spouse (let’s call her Nancy). Derek had adult children from his first marriage. Derek and Nancy had lived together for a few years and she cared for him during a long period of declining health resulting in his ultimate death.  I had met Derek shortly after the death of his first wife, and helped him prepare his first Will. He met Nancy and their relationship progressed, such that he adjusted his Will multiple times, each time increasing the support provisions for Nancy. On his death, Derek provided Nancy with a sizeable trust, from which she would receive a monthly stipend. His adult children each received specific bequests. The children fought to overturn the Will, primarily on the basis of undue influence.

Undue influence, in the context of wills, requires “testamentary undue influence, amounting to outright and overpowering coercion of the testator, which must be considered.” In Seguin v Pearson, 2018 ONCA 355 the Court of Appeal re-confirmed that in Ontario, the party attacking the will bears the onus of proving that the will was made due to undue influence.

Earlier court cases have outlined 6 circumstances that can be relevant to establish undue influence:

• increasing isolation of the testator;
• the testator’s dependence on the alleged influencer;
• substantial pre-death transfers of wealth from the testator to the alleged influencer;
• the testators expressed yet apparently unfounded concerns that they are running out of money;
• the testator’s failure to provide a reason or an explanation for leaving his entire estate to the alleged influencer and/or excluding family members who would expect to inherit; and
• documented statements that the testator was afraid of the alleged influencer.

The facts in Seguin were similar to Derek’s situation, and in Seguin the court found no evidence that the spouse had exerted undue influence over the testator in the making of his wills. Ultimately, the court noted that the will followed several months of deliberate reflection, meticulous legal advice and that the lawyers who had provided advice to the testator, had copious notes documenting his intentions prior to death. The court helpfully added that one of the factors that can be considered in rebutting the allegation of undue influence is whether the testator (the Will maker) got independent legal advice and the quality of that advice.

Preparing a comprehensive estate plan, including a Will and Powers of Attorney are extremely important. As I like to tell clients, experienced estate lawyers plan to minimize the risk of litigation with properly prepared and executed documents. Therefore, it is important to share with them the details of your unique situation. In Derek’s situation, I was aware of his relationship with Nancy, so we were able to take steps to minimize the risk that a claim of undue influence would be successful.