THE LAWYERS WEEKLY
December 2, 2011 | 9
presumption of undue influence
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The perilous
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 applic-
able to suspect inter
vivos transfers has a tes-
tamentary 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 estab-
lishing 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.
ADAM
PARACHIN
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 vulner-
able testator in poor mental and
physical health is pressured into
signing a death bed will leaving
his or her entire estate to a vir-
tual 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.
Reformers contend
that the orthodox
approach is
problematic and
that a presumption
of undue influence
should indeed be
available in the
testamentary context.
“
Adam Parachin, associate
professor, Faculty of Law,
University of Western Ontario
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