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Legal problems when making a last will and testament.
Philippe Richer
March 6, 2023
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Updated September 15th, 2023

A will is a crucial document. It establishes the owner's wishes (the person making the will) when he or she dies. When we assist clients in preparing their will, we must watch for certain things. First, a person must have the legal capacity to prepare a will. This means that she must be aware of what she is doing. If you've ever met someone with Alzheimer's, you will know what I mean. Second, they must prepare the will according to their wishes, free from influence. However, influence is measured on a scale.

As lawyers, we are concerned with undue influence. In this article, I want to explore this concept of undue influence. It is a form of influence, when exerted, that invalidates a will.

What is considered undue influence? On the low end of the scale, influence does not create a problem. Most people consult with their family and possibly friends when determining how their assets should be distributed after they pass. If you talk to your spouse and together decide that you want your respective siblings to inherit your assets, you influenced the other spouse's decision and vice versa. This type of influence does not offend any legal principles. It shows you invested some time deliberating about the topic. On the other end of the scale, when a person exercises undue influence on a testator, such as coercion, a court can declare a will invalid.

While theoretically, this seems simple enough, the practical implications are far from simple. In fact, courts have struggled to draw the line between ordinary influence and undue influence over the years. In 2000, Justice Southing for the British Columbia Court of Appeal stated, "there is no more elusive doctrine of equity than that of undue influence." Undue influence occurs when a person is either forced or manipulated into creating a will that reflects the influencer's wishes rather than the testator's. It must be so egregious that the testator did not have a choice. Courts go to great lengths to emphasize that "bad influence" does not meet the threshold.

Alberta case

In a recent Alberta case, Justice Renke tackled the issue. He cited a legal text (Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184) 

"Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else's. There is no undue influence unless the testator if he could speak his wishes would say "this is not my wish but I must do it."

So, potential beneficiaries are free to exert some influence, going as far as begging and attempting to "guilt" testators. However, potential beneficiaries' actions alone are not enough to establish undue influence. The effect on the testator must also be reviewed. If the testator is a strong-willed woman and decides she will accommodate a beneficiary's wishes, she can. This does not amount to undue influence. However, if potential beneficiaries applied exactly the same type of pressure, but the testator is not a strong-willed person, then that could cross the threshhold into undue influence.

As you can see, determining whether influence amounts to undue influence is not an easy task. In the case discussed above, Justice Renke determined that undue influence occurred. The facts are not complicated. Theodore Kozak was a 72-year-old bachelor. Prior to meeting Maryann, he had lived on a farm with his mother until she passed in 2009. He met Maryann in 2011 and entered into a relationship with her. She was 56 at the time and unemployed. Until he met her, he had never been in a serious relationship. Shortly after they met, he sold the farm and bought an acreage where they lived together. Eventually, he re-wrote his will and changed the beneficiaries from his sister and her children to Maryann and her son. Although he wrote the will in contemplation of marriage, they never married. When Theodore died, his sister brought an application to the court to have the will declared invalid. I won't go into the reasons for the judge's conclusion as they are detailed (feel free to read the case starting at para. 139), but the judge determined that the relationship was one-sided. The judge stated:

"On the evidence, I find that Maryann did not care for Ted, or at least not in any way consistent with a caring personal relationship, let alone a romantic relationship. She did not love him. She was her own priority. Ted was her bank."

The judge went on to consider several other factors and legal principles. In the end, the judge concluded that Maryann had manipulated Theodore enough that the will represented Maryann's wishes rather than Theodore. The judge stated:

"These wills represented not Ted's will but Maryann's, her desire to acquire his assets and spend his money. These wills were the result of a deliberate manipulation of Ted, 72 years old but naïve, an unhealthy man, with false promises of marriage and companionship. She drove him to do her will by twisting his hope into a goad. These Wills are therefore invalid."

The judge wrote long and detailed reasons for his decision. He had to justify the end. The length of the decision shows how difficult these types of cases are to litigate. The trial lasted five days. In the end, most of the money had been dissipated while Theodore was still alive. While this amounted to a moral victory for Theodore's sister, I suspect that the costs exceeded any benefit. Unfortunately, Theodore showed poor judgment when he first met Maryann. While Maryann certainly took advantage of him, the law cannot protect people against themselves.

Disclaimer - Legalese

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact one of our lawyers at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).

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