Canada: Cowper-Smith v. Morgan: Independent Legal Advice And Undue Influence

Last Updated: January 30 2017
Article by Wendi P. Crowe and Ahmed Malik


In Cowper-Smith v. Morgan 2016 BCCA 200, the British Columbia Court of Appeal upheld a finding of undue influence by the testatrix's daughter, despite advice from two separate lawyers. The Court also dealt with issues of proprietary estoppel, which are not discussed here. The Supreme Court of Canada recently granted leave to appeal, in part on the issue of proprietary estoppel. The appeal will not address the issue of undue influence.


Elizabeth Cowper-Smith died in 2010, leaving three surviving children: Gloria, Max and Nathan. Prior to her death, Elizabeth transferred legal title to her Victoria residence into joint tenancy with her daughter Gloria. Elizabeth also signed a Declaration of Trust naming Gloria as the bare trustee of the residence and her investments. The Declaration of Trust provided that upon Elizabeth's death, the residence and investments would become Gloria's property "absolutely". The effect of these transactions was to leave Elizabeth's estate devoid of any significant assets.

Elizabeth subsequently made a will in which she left one-third of her estate to each of her three children. After Elizabeth's death, Gloria maintained that the residence and investments were hers absolutely and did not form part of Elizabeth's estate.

The trial judge found that a presumption of undue influence arose from the relationship between Elizabeth and Gloria, and that Gloria had not rebutted this presumption. The judge held that Elizabeth's true intentions were reflected in her 2002 will. In the result, the trial judge concluded that Gloria held the residence and investments in trust for the estate, to be divided equally among the three siblings. On appeal, Gloria did not challenge the presumption of undue influence but argued that the legal advice Elizabeth received was adequate to rebut the presumption.

The Transactions, the Wills, and the Legal Advice

Elizabeth had a complicated relationship with her two sons, Max and Nathan. Based on advice from her brother-in-law, David Cowper-Smith (a retired lawyer) and Gloria, Elizabeth became convinced that her sons were going to take the residence away from her. In February 2001, David drafted a will for Elizabeth, which was to be temporary. That will named Gloria as executrix and left one-half of the estate to Gloria, and the other half equally to Max and Nathan. In March 2001, David contacted a lawyer, Ms. Iverson, to draft a will for Elizabeth. David provided his comments and background to Ms. Iverson regarding Elizabeth's relationship with her sons. He also suggested that Elizabeth's will be changed to leave everything to Gloria.

In May 2001, Ms. Iverson met with Elizabeth. Gloria was present for most of this meeting, and was the one to initially propose the idea of transferring title to the residence and investments to joint names. Ms. Iverson then discussed these wishes with Elizabeth, who agreed. Ms. Iverson then prepared a land title transfer, a declaration of trust, and a will.

Realizing the potential for litigation, Ms. Iverson referred Elizabeth to another lawyer, Mr. Easdon, for independent legal advice. Following his usual practice when providing independent legal advice, Mr. Easdon reviewed the documents Ms. Iverson had prepared with Elizabeth and explained their purpose and significance to Elizabeth. However, Mr. Easdon did not ask Elizabeth her reasoning for entering into the proposed transactions, or their financial implications. Mr. Easdon was not aware of the extent of Elizabeth's assets.

In 2002, Ms. Iverson prepared Elizabeth's last will, in which Elizabeth left her estate to her three children equally. Ms. Iverson did not have a discussion with Elizabeth at that time about what assets would pass through her estate.

The Court's Analysis

The trial judge relied on the Supreme Court of Canada decision in Geffen v. Goodman Estate [1991] 2 SCR 353 to find that the potential for domination inherent in the relationship between Gloria and Elizabeth gave rise to a rebuttable presumption of undue influence. The factors considered in relation to a presumption of undue influence include:

  1. full, free, and informed thought of the donor;
  2. lack of actual or opportunity to influence;
  3. receipt or opportunity for receipt of independent legal advice; and
  4. donor knowledge and appreciation of decisions.

As to whether Gloria had rebutted the presumption, the judge focused on the legal advice provided by Ms. Iverson and Mr. Easdon to determine whether Elizabeth had "full, free, and informed thought" with respect to the transactions involving the residence and investments.

The trial judge found that the legal advice that Elizabeth obtained from Ms. Iverson and Mr. Easdon was insufficient to rebut the presumption. David and Gloria had provided false information to Ms. Iverson, prior to her initial meeting with Elizabeth. Ms. Iverson did not confirm or verify this information with Elizabeth. The trial judge also noted that Gloria had provided initial instructions to Ms. Iverson, and had been present for much of the initial meeting. Lastly, Ms. Iverson did not confirm or clarify Elizabeth's intentions with respect to the passing of her assets when the last will and testament was prepared and signed.

A resulting trust was therefore established whereby Gloria was deemed to be holding the residence and investments in trust for the estate, to be divided equally among the children.

The Court of Appeal agreed with the trial judge's finding on this issue, and referred to the factors set out by the Newfoundland Court of Appeal in Coish v. Walsh 2001 NFCA 41 regarding legal advice in undue influence cases:

  1. the party benefitting from the transaction is also present at the time of advice or execution;
  2. the lawyer was engaged by or took instructions from alleged influencer;
  3. where the transfer or all of substantially all assets exists, the lawyer was aware of that fact, and discussed the financial implications of the same;
  4. the lawyer enquired as to whether the donor discussed the transaction with the other family members who would otherwise have benefited; and
  5. the lawyer discussed less risky options to achieve the same objectives.

The Court held that neither lawyer "gave Elizabeth the type of 'informed advice' that is required when there is a concern about undue influence, namely that Elizabeth should have carefully considered proceeding with this course of action, which in the absence of any rational reasons, might be found after her death not to be just and fair to the respondents" (at para. 65).


This case demonstrates the importance of independent legal advice in estate planning. It illustrates that the process by which legal counsel is engaged and informed may impact the quality of the advice provided and in turn may impugn the estate plan. Although the donor in Cowper-Smith obtained advice from two different lawyers, as well as her brother-in-law who was a retired lawyer, two courts have found that the presumption of undue influence was not rebutted. The estate plan comprised in joint title and the corresponding Declaration of Trust were given no legal effect.

Clients often resist the need for independent legal advice, and it can be tempting to provide background information to the independent lawyer, in the interests of client service and efficiency. However, particularly where circumstances give rise to a presumption of undue influence, such as where a parent is favouring one child over another, family members and other advisors must be careful not to influence the independent legal advisor's ability to provide 'informed advice'. The factors set out in Coish and restated in Cowper-Smith provide a useful guideline for lawyers and clients to follow to ensure the veracity of the estate plan where the presumption of undue influence might arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions