Undue Influence In A Will Challenge

Undue influence is one of the most commonly alleged but hardest to prove grounds for challenging a will. It occurs when someone exerts pressure or manipulation over the will-maker to such a degree that the will reflects the influencer’s wishes rather than the will-maker’s true intentions.

This isn’t about gentle persuasion or family members advocating for themselves. Undue influence requires proof of coercion, domination, or manipulation that overpowered the will-maker’s free will.

To prove undue influence, you must establish two elements:

The alleged influencer had the capacity to dominate the will-maker. This typically requires a relationship of dependence, trust, or power imbalance.

The alleged influencer exercised that dominance to coerce or overpower the will-maker into making the will or specific provisions.

Certain relationships create the potential for undue influence, though they don’t prove it occurred:

Caregiver relationships where the will-maker depends on someone for daily care, financial advisors or lawyers who have the will-maker’s trust and confidence, adult children living with and caring for elderly parents, or power of attorney holders who control the will-maker’s finances and decisions.

These relationships create vulnerability and opportunity, but courts need evidence of actual coercion, not just suspicious circumstances.

While the burden normally rests on the person alleging undue influence, certain suspicious circumstances can shift the burden to the beneficiary to disprove undue influence:

The beneficiary was in a dominant or fiduciary relationship with the will-maker (caregiver, attorney under power of attorney, trusted advisor).

The beneficiary was actively involved in preparing or procuring the will.

The will-maker was elderly, ill, dependent, or otherwise vulnerable to influence.

When these factors combine, courts may presume undue influence occurred and require the beneficiary to prove it didn’t.

Isolation

The influencer isolates the will-maker from family members, prevents visits, controls communications, or creates division between the will-maker and other family members.

Control Over Information

The influencer controls what the will-maker knows about their finances, family relationships, or legal options. They may misrepresent facts to manipulate decisions.

Pressure and Threats

Direct threats of abandonment (“if you don’t leave me the house, I’m moving out and you’ll be alone”), withdrawal of care, or emotional manipulation.

Procuring the Will

The influencer arranges the lawyer appointment, drives the will-maker there, sits in on meetings, provides instructions to the lawyer, and ensures the will is executed, all while the will-maker is passive or heavily dependent.

In certain relationships, particularly where a fiduciary relationship exists, courts presume undue influence if the beneficiary was actively involved in preparing the will.

For example, if someone holds power of attorney for the will maker and arranges for a new will that benefits themselves, the burden likely shifts to them to prove no undue influence occurred.

If undue influence is proven, the court can declare the entire will invalid, reverting to the prior valid will or to intestacy if no earlier will exists.

Alternatively, if only specific provisions resulted from undue influence, courts may strike those provisions while upholding the rest of the will, though this requires clear evidence that the problematic provisions can be severed.

Contact us at 416.901.9984 or info@pintoshekib.ca for a confidential consultation about your estate dispute or will challenge.