Undue influence (captation), as you may know, is a reason to annul a Will. This means that the singing person was not really making a free and informed choice. In other words, somebody else has strongly and fraudulently affected his (or her) free will – all in favor of the new heir.
To annul a Will for undue influence is hard to prove directly, yet some indications can help in Court. In the decision M.P. c. F.D.(2019 QCCS 771 (CanLII)) the Court put those indications together:
Making a Will
- the influencing person (new heir) chose a lawyer or a notary for the person signing a Will;
- the new heir was actively participating in drafting this Will, even giving his recommendations directly;
- he and/or the newly named liquidator were there at the time of making the Will;
- the new heir becomes the liquidator;
- there more than one Will or codicil prepared;
Isolation
- potential heirs were not informed of a hospitalization and real nature of the testator’s disease;
- connection between the new heir and the testator intensified to the point where it became almost exclusive;
- the new heir gets a general Power of attorney from the testator, using it where it’s necessary or not. The new heir mixes up the testator’s property with his own and puts himself in the position of conflict of interest;
- neither in the testator’s lifetime nor (as a liquidator) after the death the new heir renders accounts of his administration of the property ;
- the new heir is late to notify the members of the family about the death of the testator;
- in order to influence, the new heir isolates the testator and pretends to be the only taking care of him (her) out of pure altruism;
- the new heir tries to remove other potential heirs from the testator’s memory by removing their gifts and photos out of sight, by intercepting mail, phone calls, etc;
- the testator changes his (her) attitude towards other potential heirs and third parties;
the new heir is omnipresent and influences the whole of the testator’s life; - the family members and other third parties are not notified about the funeral. Such a funeral is held very privately in order to avoid questions about the Will and to keep the most of the capital of the Succession (Estate).
Vulnerability
- the new liquidator precipitates to distribute the property after the death;
- before and during the time of making the Will the testator is vulnerable;
- the heir interferes with the testator’s affairs;
- tension or resentment exists between the new heir and other members of the family (or other potential heirs);
- even before the death of the testator the new heir receives gifts and advantages from the him (her);
- the newly made Will reflects exactly what the new heir considers to be fair and legitimate;
- the new heir slanders the presumptive heirs and incites the testator against them;
- the new heir shows or exaggerates his hard financial situation;
To annul a Will it is important to note that one particular indication is not usually enough to prove undue influence. But when several coincide though, the chances are stronger.
This blog post contains only general information, please don’t take it for a legal advice. For all legal questions regarding your particular situation do not hesitate to consult your lawyer.
