Undue influence is an equitable principle used to set aside certain transactions. While originally applied to wills, it has been applied to other transactions and planning documents such as powers of attorney. It is always important to consider whether undue influence is it at work, especially when the older adult may have diminished capacity.
Is your client acting of their own free will? Or are they being unduly influenced by someone else?
Definition – “Undue influence” – refers to a situation in which someone is forced into making a will or carrying out a property transaction against their own wishes [coercion].
The transaction or document doe not reflect their true wishes or intentions, but rather those of the influencer
Courts have explained mere influence is not enough; there needs to be some evidence of actual coercion to establish that a will is invalid because of undue influence.
“This is not my wish but I must do it”
“Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say ‘this is not my wish but I must do it.’“
Williams and Mortimer,
Executors, Administrators and Probate
(17th edition, 1993) at page 184
Quoted in Scott vs. Cousins  O.J. No. 19 (QL) (Sup. Ct. Just.)
Coercion – Not Extortion
“The testatrix does not have to be threatened or terrorized: effective domination of her will by that of another is sufficient. … This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. “
Scott vs. Cousins  O.J. No. 19 (QL) (Sup. Ct. Just.)
Benefit to Influencer
Direct or immediate benefit to the influencer is not essential for a finding of undue influence. It is enough if the pressure results in the carrying out of the act that the influencer had desired.
Re Marsh Estate , 99 N.S.R. [2d] 21 at 230 (Prob. Ct.)
Some factors to assess are whether your client is
- Overly dependent or vulnerable
- Overwhelmed by finances
Also look at the history of the relationship of the relationship – is this a new ‘best friend?’
- A Will or a portion of it that is made as a result of undue influence is not valid.
- Undue influence is not mere persuasion, but is physical or psychological coercion.
- There must be capacity to influence and the influence must have produced a Will that does not represent the Will maker’s intent.
NOTE – A spouse, parent, or child, etc. may put his or her claims before the Will maker for recognition. This does not constitute ‘undue influence’ unless it amounts to coercion.
The BC Law Institute prepared some recommended practices for wills practitioners in response to the changing of the legal presumption regarding undue influence in the Wills Estates and Succession Act (WESA). See their publication and the attached checklists and red flags here: Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide. While intended for Wills Practitioners, the checklist and red flags are applicable to other areas where undue influence may be at play.
[from the BCLI Guide]
If Red Flags Are Present, Ask Non-Leading Questions to Determine What Factors Are Operating on the Client’s Mind
Explore Whether Client Is In a Relationship of Dependency, Domination or Special Confidence or Trust
Explore Whether Client Is A Victim of Abuse In Other Contexts
Obtain Relevant Information from Third Parties When Possible