Planning a will is one of the most personal legal decisions you can make. But what happens when someone takes advantage of a vulnerable person to alter a will unfairly? These are known as cases of undue influence in wills, and they’re more common than you might think—especially in situations involving elderly individuals or those in declining health.
Whether you're a concerned family member, a caregiver, or someone drafting a will, understanding what undue influence looks like and how it's handled in court can protect you and your loved ones from legal battles down the track. Let’s break down what undue influence really means, how the courts approach these cases, and what red flags you should watch out for.
What Is Undue Influence in Estate Planning?
In legal terms, undue influence occurs when someone uses pressure or manipulation to get another person to change their will in a way that benefits the influencer—often at the expense of others. This undermines the testator's free will, making the will legally contestable.
These cases of undue influence in wills typically arise when a person is isolated, physically frail, or emotionally dependent, leaving them open to persuasion by someone they trust, like a caregiver, child, or financial advisor.
Situations Where Undue Influence May Arise
Caregiver or Trustee Relationships
A close caregiver, especially one providing around-the-clock support, can sometimes exert control over the testator. If that caregiver suddenly becomes a major beneficiary, that’s a potential red flag.
Power of Attorney and Estate Changes After Declining Capacity
When someone holding a power of attorney initiates will changes while the testator is showing signs of cognitive decline, the risk of undue influence increases significantly.
Late-Life Estate Revisions
Major changes to a will—especially shortly before death—can raise questions. If these changes benefit someone new or exclude long-standing beneficiaries, it may warrant legal scrutiny.
Recognized Indicators or Red Flags
Courts and legal professionals look for common signs when reviewing cases of undue influence in wills:
Increasing Social Isolation of the Testator
A person who is cut off from family or friends may be more easily manipulated.
Testator’s Dependency on the Alleged Influencer
If the testator relies heavily on one individual for physical, emotional, or financial support, their decisions might not be entirely their own.
Unexplained Transfers of Assets Before Death
Giving away money or property unexpectedly before death—especially to someone not previously named in the will—could suggest coercion.
Health Fears, Pressure, or Coercion Documented
If there are medical records, letters, or verbal accounts of the testator being afraid or pressured, they could be used as evidence.
Legal Arrangements Orchestrated by Beneficiary
If the beneficiary is the one who arranged for legal documents or changes, courts may consider that a conflict of interest—especially if the testator didn’t receive independent advice.
Legal Standards and Burden of Proof
Understanding how the court evaluates these cases is key to recognizing the risks involved.
Burden on Challenger in Testamentary Cases
When contesting a will, the burden of proof generally lies with the person making the claim. They must prove that undue influence occurred, which can be a high bar.
Presumption of Undue Influence in Inter Vivos Transfers
In contrast, for gifts made during the person’s lifetime (inter vivos), the law may presume undue influence—especially when there’s a power imbalance—putting the burden on the recipient to prove it was freely given.
Impact of “Suspicious Circumstances” on Evidentiary Burden
If the court finds suspicious circumstances—like secretive will changes or involvement by a beneficiary—it may shift some of the burden onto the party defending the will.
Ontario Court Guidance: Key Cases
Seguin v. Pearson / Tate v. Gueguegirre – Indicator Sets
These landmark cases outline common indicators of undue influence and clarify how courts should weigh the evidence.
Distinguishing Capacity vs. Undue Influence
It’s important to note that a person can be mentally capable of making a will but still be unduly influenced. Courts often have to draw a fine line between the two.
Defence Strategies Against Undue Influence Claims
If you’re accused of undue influence or want to protect a will from being challenged, here’s what helps:
Evidence of Independent Legal Advice
Ensuring the testator had their own lawyer (not one referred by a beneficiary) is strong evidence of voluntary decision-making.
Demonstrations of Testator Autonomy and Clarified Intent
Letters, video recordings, or conversations where the testator clearly states their wishes can be powerful in court.
Documentation and Timeline of Decisions
Keeping track of when and why will changes were made—including health assessments and legal consultations—can help build a solid defence.
Practical Steps When Challenging or Drafting Wills
How to Preserve Evidence When Alleging Undue Influence
If you suspect undue influence, act quickly. Gather:
- Emails, texts, or letters expressing discomfort or coercion
- Medical records showing cognitive or emotional decline
- Witness statements from friends or family
Protective Drafting Tips to Prevent Future Challenges
To avoid future will disputes:
- Hire a lawyer who provides independent legal advice
- Ensure the will is clearly worded with rational explanations for decisions
- Consider involving a neutral third party (e.g. doctor) during will signing
Time Limits and Procedural Requirements in Ontario
In Ontario, you typically have two years from the date the will was probated to file a challenge. However, you should act sooner, especially if you’re worried about assets being distributed.
Final Thoughts on Cases of Undue Influence in Wills
Cases of undue influence in wills can tear families apart, delay asset distribution, and result in expensive legal battles. Whether you're a beneficiary, executor, or estate planner, knowing the red flags and legal standards can help you avoid trouble—or defend a will with confidence. If you’re drafting a will or suspect undue influence, consulting with a qualified estate lawyer is essential. Protecting someone's last wishes should never be left to chance.