Undue influence and suspicious circumstances

Law360 Canada (June 5, 2025, 12:04 PM EDT) --

Jason Moore

Lawyers who deal with potentially vulnerable clients must always be on the lookout that such clients are not the subject of undue influence. Undue influence can be exerted by people in a position to exploit the client’s vulnerabilities, such as caregivers, parents and children, and can include those who have been granted power of attorney for property or personal care.

For a litigator, proving undue influence in court can be challenging. Is the manner in which undue influence is dealt with by the court impacted by the shifting evidentiary onus where a court accepts that suspicious circumstances exist? Some recent case law also suggests that the manner in which undue influence should be addressed should vary depending upon whether the undue influence arose in the context of the drafting of a will versus the drafting of a power of attorney.

Undue influence

“Undue influence” is a term that originates in equity. Basically, it means coercion or the use of pressure to make someone undertake an act dictated by the person exerting undue influence.

Undue influence is said to occur when 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 (Banton v. Banton, [1998] O.J. No. 3528, at para. 89). Undue influence is usually described as a “coercive force,” in contrast to an attempt to persuade the testator (Scott v. Cousins, [2001] O.J. No. 19, at para. 112).

Issues related to undue influence can apply to a wide variety of legal transactions and relationships, both related and unrelated to estate law. Sometimes undue influence can be presumed based on the relationship between the parties (such as when a lawyer accepts gifts from a client), while at other times it must be proved to have taken place. In the seminal case of Vout v. Hay, [1995] 2 S.C.R. 876, the Supreme Court held that, to prove that a testamentary document was procured by undue influence, it must be shown that a party actually exerted coercive power over the testator (Vout v. Hay, at para. 28). The same approach is used when considering the validity of powers of attorney (Vanier v. Vanier, 2017 ONCA 561).

Suspicious circumstances

Closely related to the doctrine of undue influence is the concept of “suspicious circumstances.” Sections 3-4 and 7 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26, in summary, establish presumptions that a testamentary instrument that was “duly executed” is presumed valid — that is, that the testator had capacity to make the will and knew and approved of its contents. These presumptions can be rebutted by introducing evidence of “suspicious circumstances,” which then causes the person “propounding” (asserting the validity of) the will to prove its essential validity.

There is no exhaustive list of what these circumstances can be, but common categories include suspicious circumstances surrounding the preparation of the testamentary instrument; events tending to call into question the capacity of the testator. For example, if a testator who had been diagnosed with dementia suddenly executed a will that disinherited all but one of their children, and the will doing so had been prepared by the sole inheriting child’s longtime lawyer, the court would very likely conclude that that will was executed under suspicious circumstances. “Undue influence” and “suspicious circumstances” are distinct concepts but tend to overlap one another in such circumstances.

The importance of checklists and notes

It is crucial that lawyers be on the lookout for signs of undue influence in their clients and potential clients, in particular those who are elderly or vulnerable. This is especially true for drafting solicitors, who are often called as witnesses where challenges to testamentary and or powers of attorney arise. They must also keep careful notes of their interactions with their clients.

One way to stay alert for these “red flags” is to use checklists of questions to ask clients who are showing signs of undue influence. A well-made checklist will go over subjects including the client’s relationships, their assets, their previous testamentary intentions, and who is acting as their main point of contact. Many law associations and experienced solicitors keep checklists of their own that can be used as a starting point for newer lawyers seeking to build their estates practice.

From a litigator’s perspective, it is important to understand the challenges of proving undue influence in court. For lawyers who draft wills and powers of attorney, it is equally if not more important as a likely witness (or potential party) to be able to properly consider whether a client or potential client is the subject of undue influence. For those who deal with these issues or who are interested in them, there is a lunch and learn seminar on this topic that will feature Elena Hoffstein of Miller Thomson LLP and Bradley Phillips and Jason Moore of Wagner Sidlofsky LLP on Tuesday, June 10, 2025, starting at 12 p.m. This seminar is an opportunity for new and experienced estate and family lawyers to learn about this rapidly evolving area of capacity and the law. For more information and to register, please access this link.

Jason Moore is a lawyer at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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