Reforming Testamentary Undue Influence in Canadian and English Law

The traditional doctrine of testamentary undue influence developed in nineteenth century England. Its utility, however, is limited since the doctrine requires the person alleging undue influence to provide direct proof of coercion according to a high standard. In England the doctrine has remained static and there have been calls for reform. In Canada, some courts have ceased to apply the traditional doctrine so that today there is no one consistent and coherent doctrine of testamentary undue influence. This article explores two possible reforms of the doctrine both of which are evident in recent Canadian case law: a presumption of testamentary undue influence and a modified doctrine of testamentary undue influence. It is argued that testators in both England and Canada would be best protected by a three-tiered approach comprising a modified doctrine of undue influence. It entails a presumption of validity where certain measures are taken in the execution of a will; the modification of key elements of the traditional doctrine relating to the testator's state of mind, reliance on circumstantial evidence and the standard ofproof- and the adoption of the modified doctrine in those cases where a party challenges the inter vivos and testamentary gifts of a deceased donor on the basis of undue influence.