The Court of Appeal for Ontario has provided guidance as to which doctrine of undue influence should be applied when a will is contested.
“The Court of Appeal for Ontario has directly addressed the issue of which test [for undue influence] should be applied to a will,” says Lionel Tupman of WEL Partners, a wills and estates firm in Toronto, who represented the respondent in the appeal.
Robert Geddes Paterson died in December 2011; under the terms of his last will, dated the previous March, his common law wife — with whom he had lived for many years and who cared for him until his death — was the residual beneficiary of his property, notably his house. His three adult daughters — from whom he had been estranged from 1981, when he left them and their mother, until 2002, when there was a reconciliation — received specific bequests.
Before the trial judge, the daughters contended that the disposition to the respondent (their father’s common law wife) had been the product of undue influence.
In upholding the trial judge’s decision, the appellate court found that “the appellant mischaracterizes the test for undue influence in the context of testamentary gifts,” meaning gifts made in a will rather than during a lifetime.
“The rebuttable presumption of undue influence arises only in the context of inter vivos transactions that take place during the grantor’s lifetime,” wrote Chief Justice George Strathy and justices Lois Roberts and David Paciocco for the court.
“It arises from particular relationships when the validity of inter vivos dispositions or transactions is in issue; once the presumption is established, the onus shifts to the transferee to rebut the presumption,” the appellate court wrote, citing Banton v. Banton, 1998 CanLII 14926 (ON SC).
“In the case of wills, it is testamentary undue influence, amounting to outright and overpowering coercion of the testator, which must be considered. The party attacking the will bears the onus of proving undue influence on a balance of probabilities.”
Banton v. Banton was “a key case” in making the distinction between the probate (testamentary) and equitable (inter vivos) doctrines of undue influence, Tupman told Legal Feeds.
The two tests that apply to establishing undue influence, he says, are those of the “equitable” doctrine that applies to inter vivos transactions or those made during a person’s lifetime and the probate doctrine that applies to testamentary bequests, meaning gifts made in wills.
“In that [testamentary] context, the person who alleges that the will was made due to undue influence bears the burden of having to prove it,” Tupman explains. “In the inter vivos context, it’s the opposite. Once suspicious circumstances have been raised, the recipient of the gift has to prove it was bona fide, that it was the intention of the giver that they should get it. It’s a reverse of the onus.”
In this case, there was no evidence found that the deceased’s common law spouse had exerted undue influence over him in the making of his wills. The appellate court agreed with the trial judge that “Mr. Paterson independently decided to make the impugned wills and the transfer of property in favour of the respondent.”
The court also noted that the deceased’s wills and transfer “followed several months of Mr. Paterson’s deliberate reflection, coupled with the meticulous and comprehensive legal advice that he received from two experienced practitioners.”
Tupman says both of the deceased’s lawyers “had copious notes, documenting all aspects of his intentions.”
“Whether the donor got independent legal advice and the quality of the advice . . . can be one of the factors considered in rebutting any allegation of undue influence,” he adds. In this case, he says, “It was clear that both the solicitors had taken very careful notes and discussed all aspects of the transaction with him.”
Obiter comments made by the Supreme Court of Canada in Geffen v. Goodman Estate may have caused some confusion in the lower courts in Ontario, at least, says Tupman. Ontario’s decision in Seguin has “cleared up any ambiguity, if there ever was any, about which test should apply to wills [and] which party bears the onus of proving” undue influence, Tupman adds.