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undue influence

Suspicious of Undue Influence

Lawyers are often the first and most important line of defence in ensuring that a client is able to express their testamentary wishes freely in an estate plan and Will. Moreover, a lawyer who does not take reasonable steps to protect his or her client against undue influence may become personally liable (and subject to professional discipline). As such it is not only the protection of the client that should be considered as important; the lawyer’s own interests may be prejudiced where the potential for undue influence is ignored.

In this paper, we review the law of undue influence as it pertains to testamentary dispositions, discuss how the doctrine of undue influence may be the basis to set aside a Will, and offer practical techniques and steps that counsel should adhere to in order to identify common signs of undue influence.


The doctrine of undue influence is a creature of equity and provides the courts with the ability to nullify or set aside certain transactions or testamentary documents in situations where the donor’s will was dominated by a third party by way of manipulation, coercion, or abuse of power.1

Undue influence, in addition to being an equitable doctrine, is a species of equitable fraud and has been described as being a “subtle thing, almost always exercised in secret and usually provable only by circumstantial evidence.”2 Undue influence goes beyond mere influence, advice, or persuasion, it demands something more.3 The question of what exactly undue influence “demands” was answered 135 years ago in the decision of Wingrove v. Wingrove, 4 wherein Sir James Hannen provided the following oft-quoted passage:5

To be undue influence in the eye of the law there must be – to sum it up in a word – coercion [ … ] it is only when the will of the person who becomes coerced into doing that which he or she doesn’t desire to do that it is undue influence.

Although the doctrine of undue influence applies to both testamentary documents, appointments of power of attorney, and inter vivos gifts, this paper will focus on undue influence in the testamentary context.6

II. Undue Influence in the Testamentary Context

In Banton v . Banton, 7 Justice Cullity set out the modern approach of undue influence as it applies to testamentary documents:8

A testamentary disposition will not be set aside on the ground of undue influence unless it is established on the balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not that of the deceased. In such a case, it does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his will‑making power to the other person..]

[Emphasis added.]

In making such determinations, courts will look at whether “the potential for domination inheres in the nature of the relationship between the parties to the transfer.”9 Importantly, undue influence is not made out simply because a beneficiary has motive and opportunity to unduly influence a testator. Put another way, it is insufficient to show that a beneficiary or a party who may benefit had the opportunity, means, or power to coerce the testator, rather it must be shown that a party actually exerted power to such an extent that the Will would not exist, or exist in its current form, but for that exertion of that power over the testator.10

(a) Burden of Proof

The party who seeks to attack the validity of the Will on the basis of undue influence bears the burden of proof of proving undue influence on a balance of probabilities.11 Further, and unlike inter vivos gifts, there is no presumption of undue influence in the testamentary context, it must always be affirmatively proven.12

The jurisprudence surrounding undue influence in the testamentary discusses the doctrine in two situations: firstly, in situations wherein undue influence gives rise to suspicious circumstance; and, secondly, undue influence as a ground to defeating a Will.13 Both of these situations are examined below.

(b) Undue Influence As a Stand Alone Ground For Challenging a Will

It is common to see undue influence coupled with allegations of a lack of testamentary capacity. However, undue influence is an independent and separate ground that can be used to challenge the validity of the Will. The ability to raise undue influence as its own ground allows the courts to adjudicate over and set aside Wills that were made by a testator who possessed testamentary capacity but only executed the Will as a result of coercion. Put simply, undue influence does not live or die by testamentary capacity.14

The case of Marsh Estate, Re15 is an example of a successful Will challenge that was based only on a claim of undue influence. In Marsh Estate, the testator had a Will in place which gifted her home to a close friend and the residue to her sister. Eventually, the testator’s brother-in-law learned about the Will and that took umbrage with the fact that his wife, the testator’s sister, was only being left the residue and not the home, which was the testator’s principal asset.16 After this confrontation the testator allowed the brother-in-law to contact the executor of the Will and advise them that the testator had expressed a desire to change her Will and that the house would now be transferred to the sister. The executor, a trust company, relayed this information to the drafting solicitor and instructed the solicitor to ensure there was no undue influence at play.17

During the execution of the new Will, the testator informed the drafting solicitor that she was only changing her Will “because her brother-in-law did so much for her”.18 Further, it came to light that the brother-in-law had made subtle, if not outright threats of withdrawing the assistance that he had been providing the testator if she failed to change her Will.19 The court ultimately ruled that the brother-in-law coerced the testator to change her Will and therefore, the new Will was to be set aside on the basis of undue influence.20

(c) Undue Influence and Suspicious Circumstances

The individual who seeks to propound a Will has the legal burden of proof on the civil standard of a balance of probabilities, with respect to proving the due execution of the Will and proving the knowledge and approval and testamentary capacity of the testator.21 However, when a testator has made a Will that meets the formalities required by the relevant legislation it is presumed that the testator knew and approved of the contents, and had the necessary testamentary capacity to make the Will and therefore, the Will is presumed to be valid.22 As a result of this, those who seek to attack the Will must dispel or rebut this presumption and prove that the testator did not have testamentary capacity or knowledge or approval.

An attacker of a Will can rebut the presumption of validity by introducing evidence of “suspicious circumstances” which thereby rebuts the presumption of validity.23 Suspicious circumstances has been defined as meaning “evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity”.24 Once the presumption has been rebutted, the propounder of the Will is once more tasked with proving the validity of the Will.

Although, it has been noted that suspicious circumstances are innumerable in form and cannot be listed comprehensively, 25 the Supreme Court of Canada has set out three general types of suspicious circumstances, which are as follows:

  1. suspicious circumstances raised by events surrounding the preparation of a Will;
  2. events tending to call into question the capacity of the testator; and,
  3. circumstances that suggest that the free will of the testator was overtaken by acts of coercion or fraud.26

The third point means that an individual relying on undue influence as a ground to attack a Will can also rely on that ground as establishing suspicious circumstances, when then rebuts the presumption of validity. However, simply because an attacker of the Will had rebutted the presumption of validity, does not mean that undue influence has been established. As a result, a person claiming undue influence always bears the legal burden of proof of establishing such a claim.27

(d) Evidentiary Considerations

In Scott v . Cousins,28 Justice Cullity describes undue influence as “a subtle thing, almost always exercised in secret and usually provable only by circumstantial evidence.”29 As the actual conduct of the undue influence may only happen when the perpetrator and the victim are alone, it can be extremely difficult to put forth direct evidence. A further complication is that how the conduct that amounts to undue influence will ultimately manifest will vastly differ on a case-by-case basis. Despite these difficulties, Justice Cullity has provided the following helpful list of factors that one should considering whether undue influence has been established by circumstantial evidence:

  1. the willingness or disposition of the persons to have exercised undue influence;
  2. whether an opportunity existed;
  3. the vulnerability of the testator;
  4. the degree of pressure that would be required;
  5. absence of moral claims of the beneficiaries;
  6. whether the will departs radically from the dispositive pattern of earlier Wills.30


As previously noted, a specific act indicates the presence of, or amounts to, undue influence will turn upon the broader context and specific intricacies of each and every case. However, the courts have provided guidance on the indicators of undue influence, which include, but are not limited to, the following:

  1. the testator is, or is becoming, socially isolated from others;
  2. the testator is dependant on the beneficiary for emotional and physical needs;
  3. the testator has made substantial pre-death transfers of wealth to a beneficiary;
  4. the testator has experienced recent family conflict;
  5. the testator has experienced recent bereavement;
  6. a beneficiary suddenly directs the testators to a new lawyer that is unknown to the testator to draft a new Will;
  7. a beneficiary has conveyed instructions to the drafting lawyer on behalf of the testator;
  8. the testator has made a new Will that is inconsistent with previous iterations of the Will; and,
  9. the testator has made testamentary changes similar to changes made to other documents such as power of attorney documents.31

The above list is by no means a definitive list of what a solicitor should be wary of as the indicators that may indicate undue influence are innumerable form and context specific. Nonetheless, estate practitioners should keep these factors in mind over the course of their representation of clients in preparing a Will.


When a claim of undue influence is raised, the court will often look at the actions or omissions of the solicitor who drafted the Will including whether the solicitor made any notes pertaining to the testator and presence or absence of any suspicious circumstances.32 Importantly, if the solicitor is aware, or should have been aware, of potential red flags of undue influence the solicitor may be held to a heightened or elevated duty in ensuring that the testator is expressing their true wishes.33 The cases of Danchuk et al. v. Calderwood et . al.,34 and Juzumas v . Barron,35 are instructive as to what a solicitor should and should not do when there are concerns of undue influence.36

In Danchuk, an elderly widower was unduly influenced by a caregiver who was hired to assist with the widower’s in-home care to such an extent that the widower granted power of attorney in her favour, married the housekeeper, and executed a new Will which made the caregiver the sole executor and primary beneficiary.37 B.C.J. No. 2383 (S.C.) at para. 11.] Upon the widower’s death, his children brought an application to void the Will due to, among other things, undue influence.

The solicitor who drafted the Will had allowed the caregiver to book the original meeting and be present throughout the entire meeting.38 Throughout the meeting the caregiver stated that she could speak on the testator’s behalf and answered the questions concerning the contents of the Will on behalf of the testator.39 The solicitor testified that she did ask the testator if he “understood what was occurring” and believed “he answered in the affirmative” but acknowledged that the testator had “difficulty with the words”.40 Perplexingly, the solicitor was of the opinion that having the caregiver being present and speaking on behalf of the testator was not a suspicious circumstance, did not believe the testator should have been interviewed separately, and believed he had independent capacity to make the Will.41

Justice Harvey, in reviewing the solicitor’s actions held that the solicitor failed her duty as a solicitor to the testator.42 More specifically, his Honour stated that the solicitor should have done the following in this situation:

  1. she should have regarded the circumstances as suspicious having regard to the deceased’s advanced age and considerable seniority to that of the plaintiff as well as his apparent dependency upon her, including allowing her to speak for him;
  2. she should have undertaken an inquiry, including interviewing the plaintiff and the deceased separately with regard to the age difference and as to the independence of the deceased in giving instructions;
  3. the inquiry should have confirmed whether the deceased had a prior existing Will and, if such a Will existed, what were the reasons for any variations or changes therefrom prompting the disposition being put forward;
  4. the inquiry should have encompassed why and for what reasons the deceased had given a power of attorney to his daughter in late 1992 and, more importantly, why upon revocation of that power of attorney a new power of attorney was to be given by the deceased to the plaintiff; and,
  5. collateral to (d), supra, the inquiry should have included some investigation of the health of the deceased.43

After reviewing the totality of the evidence including the testator’s medical evidence and history of dementia and the drafting solicitor’s failure to adhere to her duty, his Honour refused to probate the Will.44

In Juzumas v. Barron,45 the plaintiff, Mr. Juzumas, was born in Lithuania, spoke limited English, had no family in Canada, and was 89 years old. Mr. Juzumas, eventually met and was befriended by a younger woman who was 65 years old and began to provide him with housekeeping services. Eventually, the two married on the understanding that the housekeeper, now wife, would look after Mr. Juzumas and ensure he would not be moved into a nursing home, which was his greatest fear.46 The day before the wedding the housekeeper took Mr. Juzumas to a lawyer that he had never met to prepare a Will in contemplation of their marriage.47 The Will would name the housekeeper as the sole executor and beneficiary of Mr. Juzumas’ estate.48 The lawyer did not meet with Mr. Juzumas separately or provide him with an interpreter.

After the wedding ceremony, which was held covertly at the housekeeper’s apartment, the housekeeper dropped the 89 year old plaintiff off at a subway stop to get home by himself.49 Shortly thereafter, it became apparent that housekeeper had no intention to hold up her end of the bargain of taking care of Mr. Juzumas and have him live out his days in his home as the housekeeper had already begun to take steps to have the title to his house transferred into the name of her son from a previous marriage.50

The solicitor who previously drafted the Will for Mr. Juzumas and the housekeeper drafted an agreement that transferred the house to the housekeeper’s son, subject to a life interest in benefit for Mr. Juzumas.51 At no time did the lawyer explain the concept of a “life interest” or “life tenancy” to Mr. Juzumas nor was an interpreter ever provided. Mr. Juzumas would later remark that he believed he was “drugged” by the housekeeper prior to the meeting, as he had no understanding of what was occurring or what he was signing.52

Eventually, through the assistance of a past tenant of Mr. Juzumas as well as a friendly neighbour, Mr. Juzumas was able to realize he was being financially preyed upon and brought an action to have the home transferred back into his name and obtained a divorce.53

Justice Lang, who presided over the matter, did not directly comment on whether the actions of the drafting solicitor were negligent, but her Honour did rely on the solicitor’s actions and omissions in finding that undue influence existed. More specifically, her Honour found that despite the age disparity between the two and the timing of the Will, the drafting solicitor:

  1. met with the parties only briefly, and never met Mr. Juzumas without the housekeeper being present;
  2. provide no advice directly to Mr. Juzumas about the transfer of the house and its consequences;
  3. was aware of Mr. Juzumas limited grasp on the English language but took no steps to ensure that Mr. Juzumas fully understood what was being communicated i.e. providing a translator;
  4. did not explain or even show the property transfer agreement to him; and,
  5. spoke mostly in Polish with the housekeeper despite the fact that Mr. Juzumas did not understand Polish.54

Ultimately, Justice Lang invalidated the transfer of the property on the basis of undue influence. An interesting sequel to this case is the decision of Baron v. Mamak,55 which was the conclusion of  the solicitor negligence claim that sought damages against the solicitor lawyer who drafted the Will and the property transfer agreement despite undue influence being present. What makes the Baron decision interesting is that the claim was not brought by the victim, Mr. Juzumas, but rather by the housekeeper.

The solicitor’s counsel conceded that the solicitor’s actions fell below the required standard of care.56 Justice Gray agreed and further noted that the solicitor was unable to represent the housekeeper and her son on one hand and Mr. Juzumas on the other, and sought have ensured Mr. Juzumas had separate counsel.57 More so, his Honour found that in light of Mr. Juzumas’ limited language skills, the solicitor should have satisfied himself that Mr. Juzumas understood what was occurring.58

Despite finding that the solicitor fell below the requisite standard of care Justice Gray ruled that it was “impossible to find [ … ] that the breach of the standard of care caused any of the damages claimed by the plaintiffs.”59 Consequently the housekeeper’s action was dismissed.

TThe above decisions as well as others cases on this topic indicate that in order for a drafting solicitor to discharge their duty they must demonstrate that they specifically turned their mind to the issue of undue influence.60 One action a solicitor may take to show that they were attuned to these issues is to file a memorandum or take copious notes of their observations and conclusions about these issues.61 In cases where undue influence was not found, courts have observed that solicitors, among other things, did the following:

  1. met with the client alone;
  2. had subsequent meetings with their client to confirm their wishes;
  3. did not have contact with the alleged influencer;
  4. if children of the client were going to be given differential treatment under the Will, the solicitor ensured that there were paragraphs in the Will explaining the differential treatment of the children;
  5. took and maintained notes of the meetings; and,
  6. was cognizant to language issues that their client may have and attuned to other undue influence red flags.62

By contrast, in cases where undue influence was found, the drafting solicitor, among other things, did the following:

  1. failed to meet the client alone;63
  2. failed to take or retain proper notes detailing the interactions and meetings with the client;
  3. ignored or downplayed the importance of family conflicts that existed;
  4. failed to question why significant changes were occurring to a Will or power of attorney; and,
  5. failed to inquire in a non-perfunctory manner as to whether the client was being pressured or coerced into doing something against their true intentions.

In addition to adhering, or avoiding as the case may be, to the practices outlined above it may be helpful to review the British Columbia Undue Influence Guide, which provides a checklist in respect of recognizing and prevention of issues of undue influence and a flowchart, a copy of which is attached as Schedule “A”. Further, the British Columbia Law Institute Guide of recommended practices is attached as Schedule “B”.

  1.   Goodman v. Geffen,(1991) 2 SCR 353; Morreale v. Romanino, 2017 ONCA 359 at para. 13; Dmyterko Estate v. Kulikovsky, (1992) CarswellOnt 543 (S.C.J.).
  2.   Scott v. Cousins, (2001) O.J. No.19 (S.C.) at para. 48 citing Thomas E. Atkinson, The Handbook of the Laws of Wills and Other Principles of Succession Including Intestacy and Administration of Decedents’ Estates, 2nd ed. (St. Paul: West Publishing, 1953) at para 638; see also; Caroline E. Abela and Lia Boritz, Subtly, Secret and Circumstantial Evidence: The Intricacies of Winning an Undue Influence Case, 20th Annual Estates and Trusts Summit Law Society of Upper Canada (October 2017).
  3.   Scott v. Cousins, (2001) O.J. No.19 at para. 113 (S.C.J.).
  4.   Wingrove v. Wingrove (1885), 11 P.D. 81.
  5.   Ibid. at p. 82. See Scotland v. Etridge (No. 2), (2001) UKHL 44 (H.L.).
  6.   It should be noted that recently the Ontario Court of Appeal in Vanier v. Vanier, 2017 ONCA 561, held that the test to establish undue influence exerted on a grantor of a power of attorney, is the same as the test applicable in will challenge cases. Additionally, in an inter vivos context, conduct surrounding actual undue influence is “broader and more amorphous” than the conduct necessary to set aside a will or testamentary document; see John Poyser, “Capacity and Undue Influence” (Toronto: Carswell, 2014) at p. 489.
  7.   Banton v. Banton, (1998) O.J. No. 3528 (Gen. Div.).
  8. para. 89.
  9.   Fountain Estate v Dorland, 2012 BCSC 615 at para 64 referencing Goodman Estate v Geffen, (1991) 2 SCR 353. See
  10.   Driscoll v. Driscoll, 2016 ONSC 4628 at para. 46; Vout v. Hay, (1995) 2 S.C.R. 876 at para. 28; Scott v. Cousins (2001)  O.J. No. 19 (S.J.) at para. 112.
  11.   Vout v. Hay, (1995) 2 S.C.R. 876 at para. 26.
  12.   Banton v. Banton, (1998) O.J. No. 3528 (Gen. Div.) at para. 91.
  13.   Caroline E. Abela and Lia Boritz, Subtly, Secret and Circumstantial Evidence: The Intricacies of Winning an Undue Influence Case, 20th Annual Estates and Trusts Summit Law Society of Upper Canada (October 2017).
  14.   Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.) at para. 10
  15.   Marsh Estate, Re, (1991) N.S.J. No. 230 (Appeal Div.) (Marsh Estate)
  16.   Ibid., at para. 4.
  17. para. 53
  18. para. 5.
  19. para. 10.
  20. paras. 10-11.
  21.   Vout v. Hay, (1995) 2 S.C.R. 876 at para. 26.
  22.   Succession Law Reform Act, R.S.O. 1990, c. S. 26 at ss. 3-4, 7; Vout v Hay, (1995) 2 S.C.R. 876 at para. 26.
  23.   Vout v. Hay, (1995) 2 S.C.R. 876 at para. 27.
  24.   Ibid. at para. 27.
  25.   Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (O.N.C.A.) at para. 24 citing M.M. Litman & G.B. Robertson on “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity” (1984), 62 Can. Bar Rev. 457 at p. 470.
  26.   Vout v. Hay, (1995) 2 S.C.R. 876 at para. 27.
  27.   Vout v. Hay, (1995) 2 S.C.R. 876 at para. 28.
  28.   Scott v. Cousins (2001)  O.J. No. 19 (S.C.J.).
  29. para. 48.
  30. para. 114.
  31.  Gironda v. Gironda, 2013 ONSC 4133 at para. 77; Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.) at para. 9.
  32.   As a matter of procedure, a solicitor’s negligence claim should be pursued as a separate claim  as opposed to embedding it within a Will challenge concerning undue influence; see Verch et al v. Verch et al, 2013 ONSC 3018 at para. 35.
  33.   See Hussey v. Parsons, 1997 CarswellNfld 349 (SCTD) at para. 515.
  34.   Danchuk v. Calderwood (1996) B.C.J. No. 2383 (S.C.) (Danchuk).
  35.   Juzumas v. Barron, 2012 ONSC 7220 (S.C.) (Juzumas).

    For more examples of solicitor negligence cases see Kimberly A. Whaley, “Responsibility of Solicitors Concerning Undue Influence Issues”, Law Society of Upper Canada The Six-Minute Estate Lawyer (April, 2014) at pp. 6-23

  37.   Danchuk v. Calderwood [1996
  38. paras. 64, 71.
  39. para. 71.
  40. paras. 71.
  41. para. 78.
  42. para. 116.
  43. para. 117.
  44.   Ibid. at para. 130.
  45.   Juzumas v. Barron, 2012 ONSC 7220 (S.C.J.) (Juzumas).
  46. paras. 26, 28, 100, 105.
  47. paras. 29-30.
  48. para. 30.
  49. paras. 29, 31.
  50. para. 46.
  51. para. 46.
  52. para. 76.
  53.   It should also be noted that Mr. Juzumas had a new Will prepared which left the majority of his Estate to his niece.
  54.   Juzumas v. Baron, 2012 ONSC 7220 (S.C.J.) at paras. 79-93.
  55.   Baron v. Mamak, 2018 ONSC 2169 (S.C.J.) (Baron).
  56. para. 27.
  57.   Ibid. at para. 27.
  58.   Ibid. at para. 28.
  59.   Ibid.
  60.   For a discussion on other cases in this area see: Kimberly A. Whaley, “Responsibility of Solicitors Concerning Undue Influence Issues”, Law Society of Upper Canada The Six-Minute Estate Lawyer (April, 2014) at pp. 6-23.
  61.   Scott v. Cousins (2001) O.J. No. 19 (S.J.) at para. 70.
  62.   See: Ravnyshyn v. Drys, 2005 BCSC 561; Maddess v. Racz, 2008 BCSC 1550;  Kavanaugh v. Lajoie, 2013 ONSC 7; Leung v. Chang, 2013 BCSC 976 aff;d 2014 BCCA
  63.   See: Danchuk v. Calderwood (1996) B.C.J. No. 2383 (S.C.); Hussey v. Parsons, 1997 CarswellNfld 349 (SCTD); Kosowan v. Berezowski, 1997 CarswellSask 602,  (Q.B.) aff’d on appeal 1999WL33202067; Slobodianak v. Podlasiewicz, 2003 MBCA 74.

The authors of this blog are David Wagner and Robert Alfieri of Wagner Sidlofsky LLP. David is certified by STEP as a Trust and Estate Practitioner (TEP). Robert was an associate at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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