Canada: Invoking Undue Influence To Challenge Wills And Other Deeds In Quebec

The notion of "undue influence" (captation, in French) has been referred to as "worming one's way into someone's good graces and obtaining from him gifts depending on the degree of affection one has managed to inspire."¹

The courts in Quebec have held that the notion of undue influence entails fraudulent conduct, which can include undue pressure and intentional misrepresentation in order to influence a person so as to secure consent and/or to receive advantages, favours and gifts from that person that one would not have otherwise received but for such reprehensible conduct².

In Thivierge c. Thivierge 2024 QCCA 54 ("Thivierge"), the Quebec Court of Appeal revisits the criteria that define undue influence and the burden that a party alleging undue influence must bear in order to prove their case. The case must often be made by establishing presumptions since the party accused of undue influence will seldom admit wrongdoing and the party who was unduly influenced is usually deceased.

THIVIERGE C. THIVIERGE

Thivierge is the case of three brothers: Gerard, Eugene, and Raymond. Gerard owned a large parcel of land which he subdivided and variously sold and donated to his brothers over the years.

In 2008, Gerard promises one of the subdivided lots in writing to Eugene and provides in his will for Eugene to receive it.

In 2015, Gerard grants to Eugene another lot which Raymond coveted. Raymond, who lives with Gerard, discovers the donation in 2017 and is very angry. Raymond makes his displeasure known to both Eugene and Gerard, and the brothers' relationship becomes strained.

Eugene does not see Gerard for years. In the intervening period, Gerard sells to Raymond the lot he had promised and willed to Eugene and changes his will to exclude Eugene. On his deathbed, before witnesses, Gerard apologizes to Eugene for wronging him by not giving him the promised lot of land.

The trial judge annulled both the will and the deed whereby Gerard sold the disputed lot to Raymond. A social worker testified at trial that Gerard had been sick, fearful, anxious, and dependent on others' help in his later years and that he had complained of pressure from a brother regarding a lot of land. The trial judge considered that the evidence created a presumption that, but for undue pressure from Raymond, Gerard would not have sold the disputed lot to Raymond nor would he have changed his will to exclude Eugene. The trial judge held this to be the only logical conclusion that could be derived from the evidence.

DECISION OF THE COURT OF APPEAL

The Court of Appeal disagreed and overturned the judgment. In assessing the trial judge's reasoning, the Court of Appeal considered that the evidence of Gerard's fear and anxiety was scant, based only on the social worker's testimony who did not know which lot might have been at issue and which brother might have been the source of Gerard's anxiety. This was insufficient evidence to establish the trial judge's presumption of undue influence, the judge's first error. None of the elements of the evidence adduced, taken in isolation, lent themselves to the theory of undue influence.

The trial judge's next error was to deduce that there was no other logical explanation for Gerard's actions. Indeed, the fact that Gerard could have simply changed his mind about the disputed lot and about his will is a logical explanation in itself. The trial judge ought to have considered this, which undermines the theory of undue influence as rather speculative.

INSIGHTS

The Court of Appeal reminds us that it is not illicit or illegal to try to influence someone and insofar as Raymond may have influenced Gerard, the influence was not necessarily undue, which was Eugene's burden to prove.

Footnotes

1. Translation of Mignault, in his Traité de droit civil canadien, in t. 4, pp. 52 and 53 cited in Stoneham and Tewkesbury v. Ouellet, [1979] 2 SCR 172, p. 198.

2. Bernardelli Pesce v. Tortella-Materazzo, 2016 QCCS 1409 (CanLII).

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