Another common method of attacking the validity of a Will is an allegation of undue influence. For a claim of undue influence to be effective, one would need to prove that the intent of the person making the Will had been overwhelmed and replaced by the person exerting the undue influence. Imagine the scenario of a caregiver forcing an elderly person in their care to change their Will and leave all to themselves in the place of the person’s children. The starting point for the law in this area is the decision of the eminent estate lawyer and later judge, Justice Cullity. He set out the test in his seminal decision of Scott v. Cousins. Undue influence is not simply influenced or persuasion. In essence, it must go beyond that and reach the level of coercion. In other words, it is not simply influenced or even persuasion, such as by a child attempting to convince a parent to divide up their estate in one fashion or another. That is not the point. As discussed originally in the 1885 English case of Wingrove v. Wingrove, the concept is only when the will of the person who is making the Will is coerced into doing that which he or she does not desire to do, that is what amounts to undue influence. There is a presumption in favour of undue influence that arises out of certain family relationships and that applies to various transactions that take place during the testator’s life, (see the blog articles on the presumption of resulting trust) but they play no part in the law of wills. The persons against whom such presumption arises in those transactions are typically those that a testator might naturally wish to share in their estate. As an example, adding one child to the parent’s bank account, will likely not be held to be a valid transfer or gift. But leaving that child all or part of an estate in a will is not subject to attack so easily.
Such persons are entitled to press what they think are their proper moral claims. Undue influence is not simply bad influence but must amount to coercion. Persuasion and advice do not amount to undue influence, so long as the free will of the testator to accept or reject is not lost. Appeals to the affection or ties of the relative, or seeking gratitude for past services or even pity all may be fairly pressed upon the testator. The testator may be led, but not driven and the testator’s Will must be the product of their own desires, not the record of what someone else wants. There is no undue influence unless the testator if they could speak would say, this is not my wish, but I must do it.
The onus of proving undue influence rests on the person alleging the undue influence, all of which is to be proven on the balance of probabilities. The influence imposed by some other person on the deceased must be so overpowering that the document reflects the Will of the influencer and not of the deceased. A tall order, but there are certain circumstances that give rise to a presumption that undue influence may very well exist.
Not a simple test, and to prosecute such an attack requires experience and finesse based on evidence.