Virtually everyone postpones writing a will. Maybe because it is a tangible reminder of our mortality or perhaps it is difficult to decide to whom to give the property that we worked so hard to acquire during our lives. Whatever the reason may be, having a will in place ensures that your estate is distributed after death the way you intended it to be, unless you are the subject of another’s undue influence. Then your will may reflect their wishes, and not yours. The elderly population is especially vulnerable to undue influence.
An elderly person may be influenced when drafting their final will. Perhaps it is through the manipulation of a new spouse who entered into the marriage with the view of inheriting valuable assets. Perhaps it is a greedy child who believes he or she deserves a larger share of the estate than the other siblings. An elderly person, who is usually vulnerable and relies on family members, may end up drafting a will contrary to their wishes. This is known as the doctrine of undue influence.
The doctrine of undue influence was developed to save people from being victimized by others. Whether the influence is “undue” is based on the facts. There is arguably a sliding scale which weighs the vulnerability of the testator and his/her dependence on the person exercising the influence. The facts may reveal that the person being accused of exercising undue influence has exercised some unfair and improper conduct, some coercion, some overreaching, and/or some sort of fraud.
In the Ontario Superior Court of Justice case, Scott v. Cousins, (2001), 37 E.T.R. (2d) 113, Justice Cullity neatly set out the following factors to consider in an undue influence claim:
· the willingness or disposition of the persons alleged to have exercised undue influence;
· whether an opportunity existed for undue influence;
· the vulnerability of the testator;
· the degree of pressure that would be required to coerce a person in the testator’s position (considering the age and mental state of the testator)
· any absence of moral claims of the beneficiaries under the will or other reasons why the deceased should have chosen to benefit them; and
· whether the will departs radically from the dispositive pattern of earlier wills.
If there are suspicious circumstances surrounding the testator, then the normal presumption that the will is valid if properly executed is rebutted. It is up to the person claiming that the will is valid to prove that there was no coercion or undue influence on the testator.
If you feel you or a loved one may have been the victim of undue influence, the professional, experienced and cost-effective lawyers at Ottawa’s Vice & Hunter LLP can help. Our lawyers are experienced in both litigation and elder law. Contact us and we would be happy to discuss your case and how we can be of service to you.
To reach the author of this blog, Bill Hunter, email email@example.com or call 613.232.5773 x 223.
Bill is the head of the Litigation Team at Vice & Hunter LLP. He has appeared before all the trial courts in Ontario and the Ontario Court of Appeal. He has extensive experience practicing in all areas of civil litigation and advises clients on elder law issues.