In the estates context, undue influence is often alleged in order to challenge a will or an inter vivos transfer of property, often a family home or cottage. When a party in a legal dispute alleges that there was undue influence which party bears the burden of proving (or disproving) whether this is true?

Will challenges

Generally speaking, if a will meets the criteria for formal validity, it will be presumed to be valid. A litigant that alleges that a will was signed under circumstances of undue influence, will bear the burden of proving that undue influence indeed took place. In addition to the requirement to prove that there was undue influence, the party challenging the will often must provide sufficient evidence for the existence of “suspicious circumstances” surrounding the drafting and execution of the will in order to obtain an Order for the disclosure of documents and information relating to the deceased testator. If the Court finds that there was undue influence, the will in question will be ruled to be invalid.

Inter vivos transfers

By contrast, in the case of a challenged inter vivos transfer, there can be a presumption of undue influence. If the deceased had transferred property during his or her lifetime, the party challenging the transfer sometimes benefits from the presumption of undue influence: that is, the party seeking to uphold the transfer is required to prove that undue influence was not present. This is the case when the relationship between the testator and the recipient of the transfer is one in which the possibility of dependency or domination is present – such as the relationship between an elderly parent and his or her adult child, particularly if the child supports or cares for the parent. If undue influence is proven, the Court may (but is not required to) rule the transfer void.

Abbruzzese v. Tucci

The recent case of Abbruzzese v. Tucci, 2024 ONSC 957, heard earlier this year before the Toronto Estates List, provides clarity on the two presumptions noted above and when and how each apply.

In this matter, the deceased testator, Maria, was an elderly widow with two daughters, Angela and Bernadette, the Applicant and the Respondent, respectively. The Respondent moved into Maria’s home in 2009 and remained there until Maria’s death in 2018, and became the primary caregiver. Maria soon became heavily dependant on the Respondent, as her health declined and her isolation deepened.

In 2016, the Respondent drove Maria to meet with her lawyer, where she executed a new will.  This will left the home to the Respondent, and split the balance of the residue of the estate evenly between the two sisters. By contrast, under the previous will, Maria’s estate was to be split evenly between the sisters. Further, Maria also transferred the home into joint tenancy with the Respondent at the same time that the Will was executed, using the same lawyer and named the respondent her POA. Using her POA, the Respondent later transferred much of the balance of Maria’s bank account into her own account.

Throughout this time period, Maria was in her late 80s and was in poor and declining health. She was entirely dependant on the Respondent and highly vulnerable. Thea Court also found that the Respondent had engaged in “cloistering her mother and isolating her from her family”, which had further heightened Maria’s vulnerability.

Ultimately, following a multi-day trial, the Court ruled that there was undue influence in both the execution of the 2016 will and the transfer of the property. The transfer was set aside and the will ruled to be invalid.

Takeaway

In Abbruzzese, Court provides clear instructions on the burden of proof for the two different kinds of claims of undue influence at paragraphs 270 and 282 and following, respectively.

For will challenges: “With respect to undue influence in relation to testamentary capacity, the caselaw is clear that motive and opportunity are not enough to establish undue influence. It must be shown that the party actually exercised overbearing power and because of that, the Will was made. There is no presumption of undue influence as there is in the case of inter vivos transfers. The burden of proof must remain on Angela in this case with respect to setting aside the 2016 Will.”

By contrast, when it comes to challenging an inter vivos transfer, “More often, a claim is made based on presumed undue influence. This arises where the relationship between the donor and the donee creates a rebuttable presumption that the donor was unduly influenced by the recipient to make the transfer… Once the presumption of undue influence has been triggered, as I find it has been here, it is up to the recipient to rebut the presumption of a contrary intention on a balance of probabilities. The recipient must be able to show that the transfer was the result of the donor’s free, full and informed thought.”

Thanks for reading.