Undue influence in inheritance law

Undue influence in inheritance law: what should you do if you suspect undue influence?

Undue influence : Larousse definition: A manoeuvre to seize an estate, or simply to extract a gift from someone.

In Quebec, as in many societies around the world, individuals have the unlimited right to make a will and put whatever they want in it.
Individuals can then plan and organise the succession and liquidation of their assets after their death. This right is set out in Article 703 of the Civil Code of Québec, which states that: “Any person having the required capacity may, by will, regulate the devolution, on his death, of all or part of his property otherwise than by law.
To make a valid will, the person must have “the requisite capacity“. In other words, at the time the will is drawn up, the testator must be able to make free and informed choices and have full cognitive and mental faculties in order to give valid consent.
It may happen that a testator – an elderly and/or vulnerable person – signs a will while being (or after having been) the victim of fraudulent manoeuvres, lies, coercion, subterfuge, threats, ruses or even physical or psychological violence, without which he would not have signed a will.
This is called captation, and may be grounds for annulling the will on the grounds of lack of consent.

I. Definition

Legally, undue influence is a form of fraud. Capture does not have a strict definition in the Civil Code, but its scope and constituent elements have been clarified through case law.

The Court of Appeal specified that undue influence must be proven by the party invoking it and that it must be shown “that the will of the testator was captured and that the actions taken decisively led him to sign a will that he would not otherwise have signed.

These actions must amount to fraud. Manifestations of devotion – sincere or feigned – of a nature to arouse affection are not sufficient” (Delli Quadri v. Antonacc at para. 8). It is understandable that the actions “urging” the victim to sign a will must be of a certain seriousness: in fact, behaviour such as expressions of affection, interest or devotion, even for this purpose, do not constitute misappropriation.

In one case, a review of the case law was carried out to identify a number of characteristics commonly accepted by the courts as constituting undue influence.

Here is the list:

• the lawyer or notary is chosen by the heir;
• the heir plays an active role in the making of the will, in particular when he himself gives the instructions;
• the person named in the will is present with the notary at the time the will is made;
• potential heirs are not informed of hospitalisations or the true nature of the testator’s illness;
• the ties between the designated heir and the testator are intensified and become almost exclusive;
• the heir obtains a general power of attorney which he uses whether or not the situation requires it. The latter confuses the testator’s assets with his own and places himself in a conflict of interest during management;
• the heir does not account for his administration of the donor’s property during his lifetime or as liquidator after his death;
• the liquidator rushes to divide the assets after the death;
• the testator is vulnerable at the time or during the period preceding the will;
• the heir interferes in the testator’s affairs;
• there is tension or resentment between the heir and other family members or potential heirs;
• the heir is late in notifying family members of the death;
• the heir isolates the testator and demonstrates self-interested intent and thoughtfulness as well as altruism;
• the heir attempts to erase other potential heirs from the testator’s memory by removing gifts given by them, removing photos of them or intercepting correspondence;
• the heir is appointed liquidator;
• before death, the heir receives gifts or benefits;
• a sudden change in the testator’s attitude towards third parties and other potential heirs;
• the heir is omnipresent and has influence over the testator;
• the will reflects what the heir believes to be just and legitimate;
• the heir slanders the heirs apparent and angers the testator against them;
• the heir mentions or exaggerates his difficult economic situation;
• more than one will or codicils are prepared;
• family members and other third parties are not notified of the funeral, which is held in the strictest privacy to avoid the heirs having to answer questions about the will and to retain as much capital as possible in the estate. (M.P. c. F.D au para. 38)

At the time, Judge Johanne Brodeur pointed out that in cases involving capture, at least one of these behaviours appeared, and could thus be characterized as capture.

II. The burden of proof

In principle, the burden of proof lies with the claimant. In the case of undue influence, the burden of proof lies with the person alleging the defect in consent.

As we saw above, capture is often the result of cunning, fraud and subterfuge, and these behaviours and actions are often carried out with great discretion and secrecy. Initially, therefore, the deceased’s family often suspects that they have been captured.

Presumptions of fact are means of evidence accepted by the courts, and their probative value is left to the court’s discretion. Article 2849 of the Civil Code of Québec defines presumption as follows: “Presumptions not established by law are left to the discretion of the court, which must take into consideration only those that are serious, precise and concordant.