You are sure that the will “smells bad” and yet the testator was in his sound mind? Then the question is usually if the testator’s consent to change his Will was free and informed (not based on a mistake). Or was it obtained through undue influence?
In Laroque c Gagnon (2016 QCCA 1237) the Court of Appeal explained again that it is the party who brings up the question of the undue influence should prove it. There should be the evidence of actions in bad faith which could turn around the testator’s intents. There should be also evidence that those actions actually determined the testator’s decision to change his last Will. The question of undue influence (captation) was dismissed because the Court believed that the new Will reflected the intentions of the testator at the time when he signed it.
How to show undue influence
One might show that the new beneficiaries of the Will deliberately isolated the testator from those people he used to socialize with normally, that only interested people could influence his mind and that certain information was kept out of him. If there is an evidence of a campaign to discredit certain friends or relatives, this evidence is useful. Any proof that those interested people got some profit from the testator using their influence when he was alive — or at least tried to do so — could help. For example, there could be some proof of attempting to control the vulnerable person’s money and other property for their own benefit. Showing that the new beneficiaries were not close to the testator before might be a valuable argument. If the beneficiaries helped to prepare the new Will, this might be an indication of undue influence also. Especially if they acted as witnesses, brought up the text for the testator to re-write or forced the testator to use services of a new notary, previously unknown. Of course, some clear indication of vulnerability (because of age, health issues, social condition) and weak spirits of the testator add credibility to the allegations of undue influence.
Defence
But the allegations of undue influence could still fail. The new beneficiaries could show that the testator might have changed his last Will for the same or different reasons even without all the abusive actions of the new beneficiaries. For example, he was returning to the Will once abandoned. Or he discussed the changes in the Will with those people who do not benefit from these changes. It is not enough to show that the beneficiaries tried to convince the testator, even persistently. It is not enough that the beneficiaries started to show some sudden love, care and attention to a dying person, flattering and praising him. It is not even enough to show that the beneficiaries have previously forged some documents around the testator. The judge should believe first of all that the testator won’t make his new Will but for the influence of the beneficiaries (or some other interested person).
In addition, the Supreme Court decision in Stoneham et Tewkesbury c Ouelle, ([1979] 2 RCS 172, 203) specifically stated that the burden of proof is not reversed even in suspicious circumstances. This is to say, even if a vulnerable person suddenly leaves everything to a beneficiary who helped to prepare the new Will, even in this circumstances the burden of proof doesn’t shift to the beneficiary. The one attacking the Will should prove undue influence. (Interestingly, the Court of Appeal in Laroque noted that Stoneham was decided under the old Code, when the Quebec Charter was not in force and suggested that the Supreme Court decision might be revised eventually.)
Article 48 of the Quebec Charter speaks of protection of the aged persons against exploitation. And the Civil Code should be read in harmony with the Charter (according to the Preliminary Provision of the Code). This is why the Quebec Charter protection is relevant when it comes to the question of undue influence in the context of successions.
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.
