Subsequent Spouses, Testamentary Dispositions, and Undue Influence

by Rebecca Xie, winner of the 2022 Wills, Estates and Trusts Section Essay Contest

Introduction

Familial relationships and testamentary dispositions, as well as the legal issues that can arise from both, are inextricably intertwined for many people. As divorce and re-marriage become increasingly common in Canadian society, more complex family dynamics within blended families also become more common, with corresponding impacts on the testamentary dispositions of those who have had multiple romantic relationships and may have children from some or all of these relationships.

This paper will analyze Canadian wills and estates cases where the second or third legal or common-law spouse (or “subsequent spouse”) of a testator is accused, usually by the testator’s children from a previous marriage, of exercising undue influence on the testator’s disposition of assets in his or her will. After an overview of the law of testamentary undue influence in Canada, this paper will examine the common themes that arise and potentially influence decisions in cases where actions alleging undue influence are brought against subsequent spouses. These themes include the overlap between testamentary capacity and testamentary undue influence, the characterization of some subsequent spouses as marrying testators primarily for financial gain, the impact of the nature of the relationship between the testator and the subsequent spouse, the impact of the relationship between the subsequent spouse and those challenging the will, and the impact of “unnatural” dispositions in the will.

The Law of Testamentary Undue Influence

“There is no more elusive doctrine of equity than of ‘undue influence.’”¹ In accordance with these less than comforting words from Justice Southin, the precise nature of the doctrine of undue influence in the testamentary context is far from completely settled. Nowhere is this more apparent than the question of where the burden of proof lies. The onus of proving undue influence on a balance of probabilities generally lies on those challenging the will, and many cases make it clear that in common law there is no presumption of undue influence in the testamentary context, in contrast to the doctrine of undue influence as applied to inter vivos gifts.² Nevertheless, there have been a few cases where the courts have entertained the possibility of a presumption of testamentary undue influence arising under certain circumstances.³ Additionally, in British Columbia, the Wills, Estates, and Succession Act shifts the onus of disproving undue influence to the propounder of the will if those challenging the will can show that the propounder was in a position where the potential for dependence or domination of the testator was present.⁴

Other elements of the doctrine of undue influence are less elusive, at least at the level of legal principles. “Mere” persuasion or appealing to the testator’s affection, gratitude, pity, or other emotion, is not sufficient to establish undue influence, nor is undue influence “the influence of affection or attachment.”⁵ Additionally, merely having the motive and opportunity to exercise undue influence over the testator is not sufficient; the actual exercise of undue influence must be established.⁶ Undue influence requires the mind or will of the testator to be overborne or dominated by the influence exerted by another person such that the testator did not voluntarily approve of the contents of the will.⁷ In other words, “there is no undue influence unless the testator if [she] could speak [her] wishes would say ‘this is not my wish but I must do it.’”⁸ Undue influence can take the form of either acts of coercion that force a person to do something against their will, or acts of testamentary fraud that cause the testator to form false beliefs that impact the dispositions in their will.⁹ Physical violence, threats, or confinement are not required to establish undue influence, nor is malicious intent.¹⁰

Suspicious circumstances that can be brought in a wills and estates case include circumstances that indicate the testator’s free will was potentially overborne by coercion or fraud.¹¹ If suspicious circumstances are established, the presumption of knowledge and approval of the contents of the will by the testator, due execution of the will, and testamentary capacity is rebutted and the burden of proof for these elements shifts to the propounder of the will.¹² However, the burden of proof for testamentary undue influence remains with those challenging the will regardless of whether suspicious circumstances are established.¹³ Consequently, the doctrine of suspicious circumstances is not relevant when a will is challenged on the basis of undue influence alone.¹⁴

The true challenge of the doctrine of testamentary undue influence lies in its application to the facts.¹⁵ As seen below, there are several factors that can impact how the legal principles enumerated above are applied to the particular factual circumstances of each case.

The Impact of the Testator’s Mental Capacity

Legally, undue influence and testamentary capacity are separate elements, and many cases have been brought alleging one but not the other.¹⁶ However, the correlation between increased age and diminished mental capacity due to Alzheimer’s or other degenerative conditions, as well as diminished capacity leading to increased susceptibility to undue influence, has long been recognized by the courts, the medical profession, and legal academics alike. Jane Lonie argues that “undue influence almost always occurs in the context of diminished capacity,”¹⁷ and that cognitive impairment is both an established risk factor and a direct facilitating mechanism for testamentary incapacity, undue influence, and elder abuse.¹⁸ Given this clear connection between age, reduced mental capacity, and undue influence, courts are tasked with balancing the protection of elderly testators who are vulnerable to undue influence due to diminished mental capacity while refraining from impeding their testamentary freedom through blanket assumptions and stereotyping.¹⁹

In the context of undue influence cases involving subsequent spouses where testamentary capacity is also called into question, many judges appear to echo the sentiments expressed in Lonie’s article in their findings regarding undue influence. Legally, it is open to the court to find undue influence but no lack of testamentary capacity or vice versa. However, in the majority of the cases analyzed, judges either found both a lack of testamentary capacity and undue influence or sufficient testamentary capacity and no undue influence. Judges appeared to impose very different standards of evidence required to find undue influence depending on whether there were significant concerns surrounding the testator’s capacity.

In Field v James, where the testator was found to possess the necessary testamentary capacity, the judge addressed the issue of undue influence by simply stating that “[t]he evidence in this case falls well short of proving this type of influence, given my findings as to Mr. Field’s testamentary capacity.”²⁰ In Syrota v Clark Estate, the judge found that the testator possessed the necessary testamentary capacity and concluded that there was no undue influence despite the testator being ill and dependent on his wife’s caregiving.²¹ In Royal Trust Corp of Canada v Ritchie, the judge concluded that there was no undue influence after finding the testator possessed sufficient testamentary capacity despite suspicious circumstances being established, stating that all he had before him were “vague allegations”²² and that the evidence fell “well short of the required proof.”²³

By contrast, in Re Morash Estate the judge found both a lack of testamentary capacity and the exercise of undue influence, stating that “in [the testator’s] frail physical state and diminished mental stated she would have been readily susceptible to the influence of her husband and it would not have taken much pressure from him to amount to coercion.”²⁴ In Banton v Banton, the judge thought that it was neither “realistic or correct to ignore the effect that [the subsequent spouse’s] influence had on [the testator’s] mental condition,”²⁵ and stated that “[o]n the basis of the evidence there is no doubt that George Banton’s physical and mental condition made him far more susceptible to undue influence than would otherwise have been the case.”²⁶ In Walman v Walman Estate, the judge found that the testator was subject to undue influence from his second wife during a period where the testator suffered from Parkinson’s Disease and Lewy Body Dementia and experienced a progressive decline in his cognitive functions.²⁷ In Halliday v Halliday Estate, the judge found that the testator’s cognitive decline and poor day-to-day functioning, combined with the second wife initiating all contact with the solicitor who prepared the testator’s wills, were matters of concern with respect to undue influence.²⁸

Two of the cases analyzed did buck this trend of testamentary capacity and undue influence being implicitly or explicitly intertwined. In Ballagh v Ballagh, the motions judge found that although the testator’s children had presented evidence sufficient to rebut the presumption of testamentary capacity, the “coincidence” of the hostility of the testator’s second wife toward the testator’s children and a change in the testator’s will was insufficient to establish a genuine issue to be tried on the basis of undue influence.²⁹ In Josephe Boss v Succession de Boss, a case from Quebec, the judge found that the testator possessed sufficient testamentary capacity but found strong indicators that the testator’s second wife pressured the testator to exclude his daughter from his estate when he otherwise would not have done so, including the second wife’s hostility toward the testator’s daughter and her aversion to the idea that the daughter should inherit anything from the testator.³⁰ The judge also made it clear that “[t]he Court sees no reason to assume that a person with even excellent cognition could not be unduly influenced by a potential heir…The cloak of influence can come in many colours, limited only by human ingenuity and physical circumstance.”³¹

In conclusion, judges clearly observe and respond to the correlation between testamentary capacity and undue influence in cases where allegations are raised regarding both undue influence by subsequent spouses and the capacity of the testator, and it is rare but not impossible for judges to find one but not the other.

The Characterization of Subsequent Spouses as Marrying for Money

Although the link between undue influence and testamentary capacity affects undue influence cases of all varieties, one unique aspect of undue influence cases involving spouses, including subsequent spouses is the potential for the subsequent spouse to be characterized as being primarily motivated by financial gain to marry the testator by those challenging the will throughout the proceedings, by the judge in his or her reasons for judgment, or both. These characterizations are likely shaped, consciously or unconsciously, by the prevalent cultural figure of the “gold digger,” who is almost always conceptualized as a younger woman who pursues older, wealthy men out of greed instead of love. This figure is invariably viewed in a negative light. It is also arguable that this echoes in this trope are even present in academic articles on predatory marriages, which Kimberly Whaley and Albert Oosterhoff deride as an evil of society and define as “a marriage in which one person, by devious means, persuades another person, who is typically elderly, lonely, confused, and depressed, and who has failing mental and physical faculties, to enter into marriage, with the object of gaining power over and ultimately receiving the first person’s property when the latter dies. The predator is typically a younger woman who befriends an elderly man for these nefarious purposes.”³² The predominantly gendered nature of the “gold digger” trope, predatory marriages, and subsequent spouses accused of undue influence all involving women allegedly “preying on” men should not go without mention, but its implications are beyond the scope of this paper.

In Banton, the judge found that the testator both lacked testamentary capacity and was subject to undue influence by his third wife Muna. Many of the judge’s comments on Muna and the challengers of the will, the testator’s children from his first marriage, went beyond assessments of their credibility as witnesses and included moral judgments of their character. The judge referred to Muna as “a very unimpressive and unsatisfactory witness” who was “intelligent in a worldly sense and calculating.”³³ By contrast, the testator’s children were found to be “decent and honourable people and credible witnesses.”³⁴ The judge’s concluding remarks on the issue of undue influence directly characterize Muna’s motivation for marrying the testator as being for financial gain: “The case is not analogous to that of the “young man…caught in the toils of a harlot” referred to by Sir James Hannen in Wingrove v. Wingrove. It is the case of a lonely, depressed, terminally ill, severely disabled and cognitively impaired old man whose enfeebled condition made him an easy prey for a person like Muna with designs on his property [emphasis added].”³⁵ The reference to the testator being “easy prey” harkens back to Whaley and Oosterhoff’s concept of predatory marriages, with the factual circumstances comprising what is likely a standout example of such a relationship. The judge’s decision to use a quote that includes the gendered term “harlot” to contrast the factual circumstances of Banton is also notable, though again its implications are beyond the scope of this paper.

Although this was a case involving a prospective fiancée rather than a subsequent spouse, Re Kozak Estate is another illustration of a case where the judge questions the motives of someone’s motivations for entering a relationship; indeed, the finding of undue influence by the prospective fiancée, Maryann, depended on the fraudulent nature of her claimed romantic affections for the testator: “These wills represented not [the testator’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.”³⁶ The judge goes farther than the judge in Banton not only by tying the finding of undue influence to a finding of financial motivation for entering a romantic relationship, but making a factual finding (rather than a pointed post-analysis statement) that Maryann “did not care for [the testator], or at least not in any way consistent with a caring personal relationship, let alone a romantic relationship.”³⁷

Interestingly, the only other case of an undue influence claim against a subsequent spouse where the subsequent spouse was accused of marrying the testator went against the stereotypical gender configuration of such situations, with a male subsequent spouse accused of unduly influencing the testamentary dispositions of a female testator. In Devore-Thompson v Poulain, the judge found that the testator lacked sufficient testamentary capacity as well as the capacity to marry and declined to make a finding on whether the second husband of the testator, Floyd, had unduly influenced the testator.³⁸ Interestingly, despite making no finding on the issue of undue influence, the judge noted that “the plaintiff’s theory is that [Floyd] preyed on [the testator’s] vulnerabilities for financial gain. It is not necessary for the plaintiff to prove this allegation but it puts some of the evidence into context.”³⁹ It is interesting to note that, in contrast to the judges in Banton and Kozak, the judge does not directly accuse the subsequent spouse of marrying the testator for financial gain, but instead raises it as an accusation by the challenger of the will and marriage that is ultimately neither proven nor disproven. Differences in judicial attitudes toward the subsequent spouse can also be seen in the judge “reluctantly conclud[ing]” that Floyd was a dishonest witness,⁴⁰ in contrast to the judge in Banton having “no hesitation” in preferring the evidence of the testator’s children over the evidence of Muna.⁴¹

In conclusion, direct accusations of subsequent spouses marrying testators for financial gain are rare in undue influence cases. However, once a judge is convinced that this is the case, he or she is very likely to either find that the subsequent spouse unduly influenced the testator or invalidate the will on other grounds.

The Impact of the Nature of the Relationship Between Subsequent Spouses and Testators

In addition to the particular characterization of subsequent spouses as being motivated to marry the testator for financial gain, judges also appear to be influenced by the nature of the relationship between the testator and their subsequent spouse. The doctrine of undue influence has been criticized for failing to differentiate on a principled basis between acceptable influence consisting of “acts of care,” or acts influenced by kindness, compassion, thoughtfulness, and friendliness, and unacceptable or undue influence consisting of coercive or fraudulent acts that overbore the testator’s will.⁴² Consequently, judges appear to distinguish, often implicitly and indirectly, between “acceptable” and “unacceptable” influence from subsequent spouses based on whether they perceive the relationship between the testator and the subsequent spouse to be genuinely affectionate or not. In turn, this perception appears to be influenced by a variety of factors, including the relative ages of the testator and the subsequent spouse, the length of the marriage, and the relationship between the testator and subsequent spouse prior to marrying.

Judges are often reluctant to find undue influence between spouses who have been married for several years. In Taylor-Reid v Taylor, the judge noted in finding no undue influence that the testator expressed “natural love and affection” for his second wife whom he had been married to for 12 and a half years,⁴³ in contrast to the testator’s much more tumultuous relationship with his daughter, who was challenging the will. In Becker v Becker, there was no finding of undue influence despite suspicious circumstances surrounding the testator’s capacity and evidence of persuasion or suggestion by her second husband, with the judge noting that “[i]ssues of capacity and undue influence frequently arise when, for example, a new Will is made to benefit someone who had only come into the testator’s life. This is not such a case…The intimate relationship between [the testator] and [her second husband] had survived for almost 30 years.”⁴⁴ In both Syrota and Ritchie, the judge found that the testator was not unduly influenced by a subsequent spouse of over 10 years who acted as his caregiver.⁴⁵ In Henry v Henry, the judge found no evidence of undue influence by the testator’s second wife and explicitly noted both her age (50 at the relevant time) and that she and the testator had been married for 14 years in referencing the lack of suspicious circumstances surrounding the contents of the testator’s will.⁴⁶

When there is a significant age gap between the testator and the subsequent spouse and/or the subsequent spouse acted in a paid caregiving capacity for the testator prior to their marriage, judges are far more likely to make a finding of undue influence. In Danchuk v Calderwood, the judge, who found that undue influence was exercised, criticized the solicitor who drafted the testator’s will for failing to inquiry into the suspicious circumstances, which included the testator’s “advanced age and considerable seniority to” his second wife;⁴⁷ the judge also noted that the second wife was initially employed as a part-time caregiver of the testator.⁴⁸ Similar circumstances with respect to a considerable age gap and prior paid caregiving relationship arose in Banton, with a similar finding of undue influence by the subsequent spouse.⁴⁹ In Boss, the judge, who found that there was undue influence, noted that the testator’s second wife was “over 30 years his junior.”⁵⁰ In Koster v Koster, the motions judge refused to grant summary judgment on the issue of undue influence as those challenging the will had brought evidence that the testator’s second wife, who was 17 years younger than the testator and had been in an affair with the testator while he was married to someone else for several years, had pressured the testator into marrying her and was cloistering him from others.⁵¹

In conclusion, the nature of the relationship between the testator and the subsequent spouse, particularly the relationship’s length and the age difference between testators and subsequent spouses, appears to factor prominently into judges’ findings regarding undue influence. It is interesting to note that judges generally do not comment on the age difference between the testator and the subsequent spouse, and when they do it is often to note that the gap is, in their eyes, substantial and relevant.

The Impact of the Relationship Between Subsequent Spouses and Will Challengers

In blended families, conflicts can arise between subsequent spouses and other family members of the testator, particularly their children from previous marriages. These conflicts are often exacerbated by the provisions of the testator’s will, and animosity toward subsequent spouses motivates many challenges by children, nieces, and nephews against subsequent spouses on the basis of undue influence (and, sometimes, vice versa).⁵²

When this animosity is especially blatant, judges are unlikely to find that undue influence was exercised by the subsequent spouse. In Kouwenhoven Estate v Kouvenhoven, the judge dismissed the case against the testator’s second wife for undue influence, forgery, and fraud and awarded her special costs because the affidavit evidence filed by the testator’s children was largely inadmissible, filled with hurtful opinions about the second wife, and did nothing to advance their case.⁵³ The judge noted that the proceedings were founded on “speculation and innuendo” and that the children’s animosity toward the second wife “were hardly a basis to commence legal proceedings.”⁵⁴ In Kerner v Fioreli, the judge determined that there was no evidence of undue influence and rejected the evidence led by the testator’s children (including spying on their father from a hospital closet for hours and characterizing the second wife as a “Polish whore”) because it demonstrated an animosity toward the testator’s second wife “founded solely on the fact that [their] father chose to benefit her and not his children.”⁵⁵

Conversely, if it is apparent that the subsequent spouse displayed animosity toward those challenging the will, the judge appears to be more likely to find that undue influence was exercised on the testator to exclude the will challengers from the will. In Walman, the judge found that the testator’s second wife had poor relations with the testator’s sons and consequently “persuaded [the testator] to do what she wanted him to do in arranging his financial affairs, out of love for and a sense of responsibility to her that should take priority over his love for his sons.”⁵⁶ In Boss, the judge found that the second wife’s hostility toward the testator’s daughter and her aversion to the idea that she should inherit anything from his estate were “strong indicators that she likely pressured her husband to exclude his daughter from his testament when he otherwise would not have done so.”⁵⁷ By contrast, in Ballagh, the evidence of the second wife’s hostility toward the testator’s children was not contradicted, but the judge determined that this hostility did not show that the testator was subject to undue influence but was instead a coincidence.⁵⁸

In conclusion, overt hostility between the subsequent spouse and those challenging the testator’s will is likely to impact the judge’s determination on undue influence against the direction of the animosity.

The Impact of “Unnatural” Testamentary Dispositions

The nature of the provisions found in the testator’s will also appear to influence findings regarding the presence or absence of undue influence by a subsequent spouse. Consensus among the international legal and medical communities is that “unnatural” or “inofficious” will provisions constitute red flags or indicia of undue influence.⁵⁹ Legal academics have noted that these indicia have been used by courts to enforce social norms, particularly that provisions to one’s heirs, spouses, and close relatives are natural and normal while provisions to strangers and new acquaintances are unnatural and abnormal.⁶⁰ Judges also appear to be influenced by who among those challenging the will and the beneficiaries of the will they determine to be more sympathetic and more “deserving” of the testamentary gift.⁶¹

In Taylor, the judge appeared to find that the testator’s provisions were not unnatural and implicitly indicated that the testator’s second wife was more “deserving” than the testator’s daughter, observing that there were “other reasons” besides undue influence for the testator to make his second wife his estate’s residual beneficiary over his daughter, including false allegations of sexual abuse and elder abuse brought by the daughter against the testator and the second wife.⁶² In Ritchie, the judge found no undue influence by the testator’s third wife and addressed the normality of the will’s provisions: “[i]t is not so unusual that a man chooses to provide more to his care giving wife and somewhat less to his adult children. Mr. Ritchie could have chosen to disentitle his children and leave his entire estate to Mrs. Ritchie. He did not do so and one can assume that he wanted to benefit his children but to a lesser extent.”⁶³

In Boss, the judge found that the testator’s second wife had unduly influenced the testator to leave his daughter out of his will and went so far as to claim that the testator “clearly understood, begrudgingly perhaps at times, that his daughter suffered from bipolar disorder” and was “an intelligent and humane individual…and must have realized that her behavioural errors were not voluntary,” concluding that “[i]t simply does not make sense that such a man would bequeath his daughter nothing.”⁶⁴ In Halliday, the judge found that the elimination of several bequests to the testator’s son from the testator’s will despite no evidence of a falling out between the testator and his son constituted a suspicious circumstance, and ultimately found that there had been undue influence by the testator’s second wife.⁶⁵ In Walman, the judge characterized, with implicit disapproval, the second wife’s undue influence over the testator as persuading the testator “to do what she wanted him to do in arranging his financial affairs, out of love for and a sense of responsibility to her that should take priority over his love for his sons.”⁶⁶

In conclusion, it is not uncommon for judges to implicitly or explicitly apply prevalent social norms and conceptions of which party is more “deserving” to their determinations of whether a subsequent spouse has unduly influenced a testator.

Conclusion

This paper has explored a variety of elements and considerations that may factor into judgments in cases where undue influence of a testator by their subsequent spouse is at issue. These factors include testamentary capacity, the characterization of some subsequent spouses as marrying the testator for money, the nature of the relationship between the testator and the subsequent spouse, the relationship between the subsequent spouse and those challenging the will, and whether the testator’s will contains any “unusual” provisions or dispositions to unsympathetic beneficiaries.

There are several other elements of testamentary undue influence cases involving subsequent spouses that are worthy of analysis. It is possible that, as societal norms and attitudes toward divorce and re-marriage have shifted over time, judges’ findings regarding undue influence by subsequent spouses have also shifted. There may also be unique dynamics at play in cases where the testator and the subsequent spouse are of the same gender.

Ultimately, so long it is “a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife”⁶⁷ and the only certainties in life are death and taxes, the confluence of subsequent spouses and testamentary issues, including allegations of undue influence, will continue.

Endnotes