Will - Undue Influence

Question 1

Undue Influence

Answer 1

Will invalid if obtained through undue influence (challenger must prove):
(i) influence exerted on testator
(ii) such that it overpowered mind and free will of testator
(iii) will would not have been executed but for the influence

Circumstantial evidence: undue influence usually proven through circumstantial evidence to show inference of undue influence
* opportunity to exert influence
* susceptibility of testator (age, physical condition)
* beneficiary was active in procuring will
* contrary to expressed intent of testator
* will provisions seem unnatural

Question 2

Common Law Presumption of Undue Influence

Answer 2

Burden of proof shifted to will proponent when:
* there was confidential relationship between beneficiary and testator
* (ii) beneficiary participated in procuring/drafting/executing will
* (iii) will provisions are unnatural and favor alleged influencer

CA’s confidential relationship:
* Found whenever a party heavily relies on/places abnormal amount of trust on another
* Ex. Mother-son relationship where mom entirely dependent on son

Question 3

CA’s Presumption of Undue Influence

Answer 3

Presumption of undue influence where beneficiary is:
(i) person who drafted instrument (or relatives/associates), or
(ii) person who transcribed instrument and was in fiduciary relationship with testator, or
(iii) care custodian (or his relatives, cohabitants, or employees)

Exception: Presumption does NOT apply to someone who had a personal relationship with the transferor before she became dependent and provides services without remuneration