All About Estates

Undue Influence Voids a Capable Testator’s Will

In Krivokapic v. Josephe Boss, the Quebec Court of Appeal affirmed the invalidity of a capable testator’s Will that was procured through undue influence.


The testator, Valentin Boss, was an accomplished professor and author during his career. The testator was married for 22 years, and had one daughter, Sylvia Katerine Josephe Boss (“Sylvia”). The testator was divorced in 1989. The testator began a relationship with Milica Krivokapic (“Milica”) in 1989, and they married in 2007.

Also in 2007, the testator was diagnosed with prostate cancer, which was treated over the next eight years. In November 2010, the testator made a Will leaving his estate to Milica unless she predeceased him or died within 30 days of his death, in which case, the residue of the estate was to be held in trust for Sylvia. The testator had no prior Will.

The testator died on November 29, 2015. He was survived by both Sylvia and Milica. In June 2018, Sylvia commenced proceedings in the Superior Court of Quebec to have the Will declared null and void on two grounds: (1) that the testator lacked the required mental capacity; and (2) that Milica had unduly influenced the testator. Milica filed a cross-demand for libel and defamation.

During the 10-day trial, much of the evidence focused on the conflicting evidence of Sylvia and Milica as to their relationship with the testator. Milica claimed that Sylvia suffered from mental health issues and was a turbulent influence in the testator’s life, to the point where her presence was harmful as his illness progressed. Milica alleged that Sylvia was estranged from the testator.

Sylvia denied the estrangement, and alleged that Milica, while caring for the testator during his illness, was manipulative and controlling, and isolated the testator from friends and family in the years before his death.

The Judgment

At trial, the Judge found the testator was mentally competent to execute the Will, but agreed that Milica unduly influenced the testator such that the Will was invalid. Milica appealed.

The Appeal

In reviewing the applicable legal principles, the Court of Appeal confirmed that there is nothing improper in attempting to influence a person in making a Will. However, when the testator has been subjected to undue influence, such that the testator is caused to make Will he would not otherwise have made, the will can be annulled. The burden of proof lies with the party alleging undue influence, which is often made by presumption, since the person exerting undue influence will rarely do so in the open, and the person subjected to the undue influence is not available to testify.

The Court of Appeal was not convinced that the Judge made any palpable or overriding errors in his analysis. The central focus of the Judge’s analysis was determining if Sylvia had met her burden to establish undue influence, including the question of why she had been excluded from the Will, which was an appropriate enquiry. The fact that the Judge assumed the testator would not have excluded Sylvia from the Will unless there had been a falling out or evidence of cruelty did not indicate that the Judge had formed some sort of bias.

The Judge’s conclusions that Sylvia had met her burden were based on a thorough analysis of the evidence, in particular: (a) there was no explanation or communication from the testator explaining why he would disinherit Sylvia; (b) Milica strongly disliked Sylvia and felt she did not deserve an inheritance; (c) Milica felt that she, as the devoted wife, deserved a major inheritance; (d) although the testator was capable to making a Will, there was some evidence of cognitive diminution by November 2020; (e) the testator was physically and morally dependant on Milica by the time he made the Will; (f) Milica was the testator’s gatekeeper for all social contact; and (g) Milica exercised control over her husband’s written communications.

On the subject of the burden of proof, the Judge’s conclusions were based on his analysis of the entirety of the evidence and not the examination of individual facts in isolation, and he found that collectively, they gave rise to a finding of undue influence.

As for the Judge’s evaluation of the medical evidence and his conclusion that the testator was susceptible of being unduly influenced, the Judge did not err. The testator was diagnosed with Lewy body disease in 2011, after the Will was signed, and there was evidence to suggest that this condition had affected his cognitive function prior to that.

The Court of Appeal found that Milica’s right to a fair trial was not breached, as the Judge did not cut short her right to examine, never refused a request for additional time, and did his best to efficiently manage Court time.

The appeal was therefore dismissed.

Take Away

This case provides a rare example of undue influence being established where the testator remained capable, although cognitively diminished, and shows that a capable testator’s dependence on, and isolation by the undue influencer, and the undue influencer’s personal feelings of entitlement to an inheritance, may sway a Court to invalidate a Will.


About Rebecca Studin
Rebecca Studin was called to the Bar in 2009. Before joining de VRIES LITIGATION LLP, Rebecca practised estates and commercial litigation at a full-service international law firm in Toronto. Rebecca’s estates experience includes will interpretation applications, will rectification applications, solicitor’s negligence actions, and other estates and trusts matters. Rebecca obtained her law degree from Osgoode Hall Law School after earning her honours bachelor of arts degree from Glendon College, York University. Following her call to the Bar, Rebecca was selected as a Fox Scholar and spent a year training as a barrister at the Middle Temple, Inns of Court, in London, UK.


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