Ontario’s Divisional Court highlights indicators of undue influence

Tate v. Gueguegirre^[1] is a recent and short case from the Ontario Divisional Court of the Superior Court of Justice; it provides further guidance on what constitutes potential evidence or indicators of undue influence in the context of a drafting of a will.

The deceased’s will was challenged on the basis of lack of testamentary capacity and undue influence.^[2] The trial judge found that there were "suspicious circumstances" but that "there was no undue influence" and that the "will was made with testamentary capacity."^[3]

On appeal, the Divisional Court found that the trial judge correctly analyzed whether the testator had testamentary capacity:

The trial judge summarized the evidence of suspicious circumstances and concluded that these circumstances rebutted the presumption of capacity, leaving it to the respondent to prove capacity on a balance of probabilities. The trial judge then analyzed the evidence of capacity and concluded that the respondent "has on a civil standard proven on a balance of probability that the testator had testamentary capacity at the time of the execution of the final Will.^[4]

However, the trial judge did not analyze the evidence or make factual findings on the issue of undue influence. The Divisional Court concluded that there was no analysis of the undue influence issue and no findings of fact or reasons to support the trial judge’s conclusion that there was no undue influence.^[5] Of note, the Divisional Court observed that:

[t]here was significant evidence suggesting that the Will was a product of undue influence including:
 

1. the increasing isolation of the testator;
2. the testator's dependence on the respondent;
3. the substantial pre-death transfers of wealth from the testator to the respondent;
4. the testator's expressed yet apparently unfounded concerns that he was running out of money;
5. the testator's failure to provide a reason or explanation for leaving his entire estate to the respondent and excluding his daughters from it;
6. the material changes in circumstances between the time of the first Will from the time of the final Will that would undermine the testator's earlier reasons for favouring his son in his Will;
7. the move by the testator to Bobcaygeon, increasing his isolation and the control over him by the respondent;
8. the circumstances of the making of the Will including:
   1. using a lawyer previously unknown to the testator and chosen by the respondent;
   2. the respondent conveying instructions to the lawyer concerning the contents of the Will;
   3. the respondent apparently receiving a draft of the Will before it was executed by the testator and then the respondent taking the testator to the lawyer to sign the Will;
9. the testator's documented statements that he was afraid of the respondent.^[6]

The Divisional Court concluded that undue influence was a central issue in the case, which needed to be assessed separate and apart from the issue of testamentary capacity, and remitted the case back for trial in front of a different trial judge.^[7]

Conclusion

The factors or indicators of potential undue influence observed by the Divisional Court echo and may well expand upon the (non-exhaustive) list found by the Ontario Superior Court of Justice in the 2013 decision of Gironda v Gironda:

The testator is dependent on the beneficiary in fulfilling his or her emotional or physical needs;

• The testator is socially isolated;
• The testator has experienced recent family conflict;
• The testator has experienced recent bereavement;
• The testator has made a new Will that is inconsistent with his or her prior Wills; and
• The testator has made testamentary changes similar to changes made to other documents such as power of attorney documents.^[8]

Both the list in Gironda and the list in Tate can act as helpful guidelines and reminders for practitioners to be cognizant of the "red flags" when drafting testamentary documents for clients who could be vulnerable to undue influence.

For a practice checklist of factors to be considered where there is concern about undue influence, visit: Whaley Estate Litigation Resource Centre and download the “Undue Influence Checklist: Estates and Related Matters.”

About the Author

Kimberly A. Whaley is Principal at Whaley Estate Litigation in Toronto.

End notes

[1] Tate v. Gueguegirre, 2015 ONSC 844 (CanLII).

[2] Estate of David Bruce Tate, 2012 ONSC 6890 (CanLII).

[3] Ibid. para. 2.

[4] Supra note 1, paras. 3 and 4.

[5] Supra note 1, para. 8.

[6] Supra note 1, para. 9.

[7] Supra note 1, para. 10.

[8] John Gironda et al. v. Vito Gironda et al., 2013 ONSC 4133, para. 77 (CanLII).