Undue influence is a troubling issue in estate planning as it is not always apparent to even the most experienced of lawyers when taking instructions from clients. The circumstances of influence are frequently not disclosed by a client, and the influencing party often does so privately and secretly. To constitute undue influence, the level of influence imposed by some other person on a testator must be:
…so great and overpowering that the document reflects the will of the former and not that of the deceased. In such a case, it does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his [or her] will-making power to the other person.[1]
There were two recent cases in Alberta which involved analyzing the will of a deceased testator on the allegation that the dispositions made in the will did not reflect the true wishes of the testator and were obtained by undue influence.
Kozak Estate
In Kozak Estate (Re), 2018 ABQB 185 (“Kozak”), Theodore Kozak (“Ted”) entered into a relationship with Maryann Seafoot (“Maryann”) in 2011 with the stated intention to be married at some point in the future. Ted was a 72 year old man and a lifelong bachelor who owned a farm in rural Alberta where he had lived his entire life. Maryann was approximately 56 years old and had adult children from prior relationships. Ted had a will drafted in 2009, naming his sister Yvonne Krezanoski (“Yvonne”) as executor and beneficiary of his estate and her son as alternate beneficiary. Yvonne was also his named Attorney under his Enduring Power of Attorney and Agent under his Personal Directive.
Within two months of Ted and Maryann commencing their relationship in June 2011, Ted swiftly sold his long-term home to move into an acreage with Maryann in a town closer to where she had her social circle. Notably, they slept in separate bedrooms and had a relationship that outsiders noted as akin to a “landlord-tenant” relationship,[2] despite Maryann purporting to agree to marriage at a later date.
Ted rewrote his will twice, first on September 8, 2011 and again on January 23, 2012, with the second version written in expressed contemplation of his marriage to Maryann. Ultimately, he removed Yvonne and her children as beneficiaries and replaced them with Maryann as primary beneficiary and her son, William inheriting if Maryann predeceased.
Ted also redrafted his Enduring Power of Attorney twice, once in February 2013 and again in June 2013, ultimately appointing Maryann and her son, William. The Personal Directive was also amended in June 2013 concurrently with the final amendment to the Enduring Power of Attorney, with Maryann named as agent and William as alternate agent.
Ted’s health also deteriorated in 2013 and he was moved into a long-term care facility. Maryann visited infrequently and failed to pay for the long-term care facility or provide personal effects, care or support.[3] Maryann drained the accounts of Ted over time in expenses and usage of VLTs in what the Court described as “a substantial pre-death transfer of wealth from Ted to Maryann.”[4] The Court found Maryann’s testimony of a loving relationship to lack credibility.
It has been well established that the burden of proving undue influence is carried by the applicant.[5] They must prove that the likelihood of the will being the product of undue influence is greater than the likelihood that it was not the product of undue influence.[6] In this instance, Ted’s counsel properly tested and confirmed testamentary capacity in each meeting; however, the procedures in each meeting did not eliminate or mitigate any taint of undue influence attached to Ted.[7]
Ultimately, the Court held that the circumstantial evidence demonstrated that the 2011 and 2012 wills were the result of Maryann’s undue influence, with two clear indicia of manipulation, being isolation and changes to Ted’s personality. The Court stated this quite emphatically by noting:
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.[8]
Shier Estate
In Shier Estate (Re), 2018 ABQB 494 (“Shier”), Anne Shier (“Anne”) passed away in 2012, leaving behind a will that triggered a dispute amongst the three surviving children as to what her testamentary wishes truly were. The last will, which was executed on October 23, 2006 (the “2006 Will”), was alleged to be subject to the undue influence of one of the children.
The 2006 Will purported to leave: one parcel of land of 160 acres, which contained buildings including a residence (the “Home Quarter”), to Anne’s son, John Shier (“Jack”); a second parcel of 110 acres (the “NE Parcel”) to one of Anne’s daughters, Margaret-Anne Shier (“Margaret”); and the residual assets to her other daughter, Frances Jamison (“Frances”). The residue of the estate was comprised of various liquid assets, net of estate expenses. The outcome was an unequal distribution.
Frances claimed that the 2006 Will was invalid because it did not represent her mother’s actual wishes. Her claim was that Anne always wished to divide her estate equally among her three children, which was first reflected in her will with her husband Herb back in 1977. Herb passed away in 1998, leaving the entirety of the estate to Anne. Frances further alleged that Anne’s true wishes were overridden by Jack’s undue influence upon their mother and that the 2006 Will was a product of coercion and done in accordance with Jack’s wishes.
Frances, and her husband Michael, a practicing lawyer, argued that a will prepared by Michael’s office in 2003 and purportedly signed in August 2004 (the “2004 Will”), which left part of the Home Quarter to Frances, was the valid will. There was also a previous will drafted in November 2001 by independent counsel (the “2001 Will”), which was similar to the 2006 Will.
Jack denied these claims, saying the 2006 Will reflected their mother’s wishes that she determined on her own, repeated many times and communicated to the independent lawyers without anyone else present in the room. He claimed that the drafting lawyer satisfied himself that Anne was not operating under any undue influence or coercion, both when he received instructions and when Anne signed the 2006 Will. It was also suggested that it was Michael who had attempted to convince Anne to sign a version of her will that was more favourable to Frances.
Shortly after the 2006 Will was signed, Anne conveyed the NE Parcel to Margaret inter vivos, and the Home Quarter to Jack, presumably to allow them to transfer outside of the estate. In both cases, Anne maintained a life estate interest and was entitled to any income derived from those properties during her life. Frances claimed these land transfers were also flawed as being the subject of undue influence and being effected without any independent legal counsel for Anne.
The Court in Shier properly noted that Frances, as applicant, carries the burden of proving any undue influence was operating upon Anne and that the 2006 Will is the result of undue influence.[9] The Supreme Court of Canada in Vout has held that “[i]f it is established that the testator knew and appreciated what he was doing, in many cases there is little room for a finding that the testator was coerced.”[10]
The Court also noted that in Alberta, evidence raised by a witness who stands to directly gain or lose under a will must be corroborated by other material evidence.[11] This supporting evidence does not need to be strong, only that it “makes the [interested party’s] evidence more probable than not.”[12]
Frances claimed that “one of the clearest indications of Anne being subject to undue influence at the time” was that Jack, Margaret and their spouses drove Anne to the law office on the day of the signing of the 2006 Will, which was two blocks away from Anne’s home. She posited that the “only possible explanation for this is that the four of them seized the opportunity to coerce Anne to make the [2006 Will], to their benefit, and contrary to what Frances says was Anne’s true wish.”[13]
The Court rejected this argument, noting that on a balance of probabilities there were “innumerable other possible reasons” for the “escort” by Jack and Margaret; notably, the drafting lawyer likely already completed the documentation and the window of opportunity to exert influence had likely closed at an earlier date. The Court also noted that there was “no evidence that their purpose was anything other than ensuring Anne could once again make sure her affairs would be dealt with as she wished rather than as interfered with by Michael.”[14]
With this in mind, the Court found that Anne was only influenced to the extent that Jack wanted her to complete her will in a timely manner. Frances was unable to demonstrate that Jack’s involvement rose to the level of undue influence. The Court found that Jack’s involvement “precipitated opportunity for Anne to update her will” and while he did benefit from her doing so, prompting someone to complete their will does not amount to undue influence.
In a thought exercise, the Court considered whether the prior purported 2004 Will should be considered, despite an executed copy being lost and an early draft from 2003 being the only proof of its existence. What the Court found was that the 2003 draft written by Michael was not sufficient, and that there were “suspicious circumstances around Michael’s episodic self-interested involvement.”[15] The Court also noted its belief that the 2006 Will was a result of Anne learning of the possible 2004 Will attributed to her, “…in a Caveat filed on behalf of Frances on the title to one of Anne’s land parcels.” The Court concluded that Anne reasserted a similar testamentary disposition in the 2006 Will as she had in her 2001 Will, with the exception of the removal of a specific bequest of a necklace that Anne believed was no longer in her possession.
The Court held that any influence Jack may have had over Anne ended when Anne met alone with her lawyers and instructed them of her true wishes. As a result, the 2006 Will was deemed valid.[16] Since the land transfers reflected Anne’s intention of the 2006 Will, the Court did not evaluate whether they were validly done.
Key Considerations
One of the outcomes from Kozak was to further establish that direct evidence is not always necessary to prove undue influence. Undue influence is often exercised in private and, therefore, can be established by circumstantial evidence, such as evidence of facts preceding, existing at the time and even following the alleged undue influence.[17] The Court in Kozak noted six circumstances that can be relevant to establish undue influence:
- the increasing isolation of the testator, including a move from his home to a new city that increased the respondent’s control over him;
- the testator’s dependence on the respondent;
- substantial pre-death transfer of wealth from the testator to the respondent;
- the testator’s expressed yet apparently unfounded concerns that he was running out of money;
- the testator’s failure to provide a reason or an explanation for leaving his entire estate to the respondent and excluding family members who would expect to inherit; and
- documented statements that the testator was afraid of the respondent.[18]
Both cases also highlight the importance of credible supporting evidence. In Kozak, the Court found undue influence because it looked beyond what was evident and drew credible conclusions from what was not evident, which was, in that case, a loving spousal relationship. Undue influence occurs in private and may not have clear direct evidence. Persons who attempt to manipulate and coerce vulnerable people do not tend to leave clear evidence.
Conversely, in Shier, the Court did not find undue influence, largely due to the credible supporting evidence. In that case, undue influence was not found to exist because the Court was able to infer Anne’s true wishes from other evidence and hearsay, which can often be unreliable.
In matters of alleged undue influence, two elements become important for the Court to consider: the assessment of credibility; and the precautions taken when such evidence is offered by someone standing to gain under the will by their evidence.[19]
Another key takeaway is that undue influence is distinguishable from testamentary capacity and that otherwise capable people can be coerced and influenced. In Kozak, there was no evidence that Ted lacked capacity; rather, his lawyer demonstrated key indicators that Ted had capacity. Ted understood what he was doing but did not realize or appreciate that he was being emotionally manipulated. In Shier, there was also no allegation from either side that Anne lacked testamentary capacity.
In both instances, the concept of independent legal advice was also considered. In Kozak, it was specifically noted that while a finding of undue influence is not rebutted or made unlikely simply because a testator received independent legal advice, independent legal advice can be a useful protection against undue influence where a lawyer is able to take steps to protect a testator from the influencer or from themselves.
Where it is evident that the instructions should be subject to greater scrutiny, an estates lawyer should elevate beyond simply translating instructions into a legal form, but also be willing to ask difficult questions and probe deeper into the testator’s motivations. In some instances, it may include a referral to an independent lawyer for a review of the will and its ramifications.
These cases reiterate the need to take comprehensive and thoughtful notes on the interactions and requests of the testator in case their testamentary rights need to be protected at a later date.
[1] Banton v Banton, 1998 CanLII 14926 (ON SC), 1998 CanLII 14926 (ONSC), at para 89 (“Banton”)
[2] Kozak at para 150
[3] Kozak at para 154
[4] Kozak at para 162
[5] Vout v. Hay, [1995] 2 SCR 876 at para 21 (“Vout”)
[6] C(R) v. McDougall, 2008 SCC 35 at para 34
[7] Kozak at para 78
[8] Kozak at para 187
[9] Vout at para 28.
[10] Vout at para 29
[11] Shier at para 16, citing Alberta Evidence Act, RSA 2000, c A-18 at Section 11.
[12] Shier at para 17, citing Duncalf v Capital Health Authority, 2009 ABQB 80 at para 43
[13] Shier at para 43.
[14] Shier at paras 44-45.
[15] Shier at para 63
[16] Shier at paras 54 and 79
[17] See for examples: Banton at para 94 and Scott v. Cousins, 2001 CarswellOnt 50, [2001] OJ No 19 at para 114
[18] Kozak at para 15
[19] Shier at para 13
