By Patrick McMurchy
Undue influence is where one person has used their position of dominance over another to unduly influence that other person to make a gift to them.
It is a legal principle intended to prevent people from being taken advantage of by people they trust, elderly people are often in a position where they are susceptible to undue influence.
In the context of estate litigation, section 52 of the Wills, Estates and Succession Act creates a presumption of undue influence where there is an allegation of undue influence in a proceeding involving a will, and there is the potential that it was used.
The starting point in the analysis is the relationship between the parties involved. The category of relationships with a potential for domination is not closed, but relationships of dependency such as parent and child, solicitor and client, caregiver and invalid are examples where the potential for domination has been found.
Undue influence is easily found where someone dominates the will of another whether through manipulation, coercion, or other outright overt actions, but the courts have found that it simply means to be able to exercise a persuasive influence over another.
So, undue influence has also been found in cases where the person exercises the domination in subtle ways, and even where the person exerting the influence has acted in the sincere belief of their own honesty.
If the presumption of undue influence is not rebutted the will or gift made will be legally invalid and will fail.
To rebut the presumption, the person defending must present evidence that the person who made the will or particular gift did so of their own free will. The standard of proof is on a balance of probabilities.
Allegations of undue influence are often made in estate litigation cases, but they should not be made on mere suspicion. Unproven allegations of undue influence may lead the court to sanction the person making the unfounded allegations by awarding special costs against them.
This short article is intended to give the reader a general understanding of some of the basic principles respecting undue influence in estate litigation. It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.