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The perilous presumption of undue influence
By Adam Parachin

December 02 2011 issue


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Does the law make it too difficult to challenge the validity of wills on the basis of undue influence? Some say that it does, but there are reasons to be wary of liberalizing the rules in the way that has been proposed.

The orthodox rule supported by high authority is that the party challenging a will always bears the onus of establishing undue influence. Some cases have been decided on the assumption that the presumption of undue influence applicable to suspect inter vivos transfers has a testamentary analogue. However, these cases tend to be exceptional and provide but modest precedential support for a testamentary presumption of undue influence.

Reformers contend that the orthodox approach is problematic and that a presumption of undue influence should indeed be available in the testamentary context. They argue that, all too often, meritorious allegations of undue influence fail because of the inherent difficulties of establishing undue influence. They also point out that there is absent a sound policy reason why a rebuttable presumption of undue influence exists for inter vivos but not testamentary transfers.

While the concerns expressed over the doctrine of undue influence need to be taken seriously, it is not at all clear that formalizing a testamentary presumption of undue influence would reflect an improvement to the law. In fact, just the opposite may hold true.

The first issue is whether the test for undue influence does indeed place an unrealistic burden on the party alleging undue influence. If it does not, the argument in favour of the presumption is difficult to sustain.

The earlier cases dealing with undue influence tended to require direct evidence establishing that coercion was the only explanation for the impugned will. Admittedly, this approach reflected an especially demanding standard. Even where a will has indeed been coerced, direct evidence of coercive conduct may well be unavailable.

However, the law has since embraced a broader concept of undue influence. Rather than insisting on a “smoking gun,” courts increasingly have been willing to consider claims of undue influence in light of all relevant circumstances, including the disposition of the person accused of undue influence, the susceptibility of the testator to influence, the presence or absence of life circumstances capable of accounting for the impugned will’s provisions and the extent to which the impugned will departs from prior wills.

Under this more holistic approach courts have upheld undue influence allegations based strictly on circumstantial evidence that previously would have been considered insufficient. The need for a testamentary presumption of undue influence is far from obvious given this evolution of the law.

Another consideration is whether it is possible to identify a list of appropriate “triggers” for a testamentary presumption of undue influence. The selected triggers would have to restrict the presumption to circumstances in which undue influence very likely occurred. Ironically, the instances best meeting this requirement are those where the need for the presumption is the least apparent.

For example, it might be unobjectionable to presume undue influence where a vulnerable testator in poor mental and physical health is pressured into signing a death bed will leaving his or her entire estate to a virtual stranger. However, this is the very kind of circumstance in which the law is able to find undue influence without the aid of a presumption.

Unless the presumption was very carefully targeted, there is a real concern that it would diminish the very testamentary freedom it is meant to protect. For example, the presumption could disproportionately jeopardize wills departing from the usual pattern of estate distribution or prepared other than in accordance with the usual protocols. A will should not, however, be presumed invalid simply because its provisions or the circumstances surrounding its creation are idiosyncratic.

Will planning is an intensely personal process. The testator has the freedom to determine not only how his or her estate is distributed but who is included in the will-making process. A presumption of undue influence has the potential to slowly erode both of these aspects of testamentary freedom. It would essentially establish de facto standards of validity going far beyond anything currently required by succession legislation.

Additionally, although the presumption is meant to facilitate meritorious claims of undue influence, its most sustained contribution might be to facilitate claims of questionable merit. Even in circumstances where no undue influence has occurred, the presumption would significantly bolster the bargaining position of parties attacking wills in settlement negotiations. The costs and risks of rebutting the presumption in court would in a great many cases result in concessions inconsistent with the testators’ true intentions being made just to settle the dispute. This of course already happens, but the presumption would increasingly result in such risk-management considerations favouring parties advancing allegations, merited and unmerited, of undue influence.

Undue influence is a serious issue. It is right that the law steadfastly refuses to enforce wills procured through undue influence. However, a testamentary presumption of undue influence is not the way forward.

Adam Parachin is an associate professor at the Faculty of Law at the University of Western Ontario where he researches, teaches and writes in the field of trusts, estates and charities law.

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