Aug 18, 2026
Undue influence is a legal principle that addresses circumstances where someone coerces another to make a decision, most often arising in estate litigation. A finding of undue influence allows the Court to invalidate transfers of property or the execution of Wills or powers of attorney, on the basis that they were not the product of the executor, transferor, or grantor’s free will.
In my experience, undue influence is used loosely. ‘Influence’ is broad and, consequently, vague. The body of law that has emerged around undue influence is rife with terms that require significant interpretation (see “potential for domination” from Goodman v. Geffen, 1991 CanLII 69 SCC).
In the context of estate litigation, where disputes center so often upon the decisions of elderly folks, it is easy for disgruntled parties to advance their interests by alleging undue influence. Parties can rationalize their suspicions by referencing the vulnerability of seniors or conflating a loving familial relationship with nefarious ‘influence’. The result is that undue influence has become something of a one-size-fits-all allegation: one that is not as readily addressed as concerns about capacity may be through the production of medical records, or concerns about knowledge and approval through the production of a drafting solicitor’s file.
In a recent decision, Buffa v. Giacomelli, 2026 ONCA 566 (CanLII), the Ontario Court of Appeal considered the difference between ‘motive’ and ‘donative intent’ in the context of rebutting the presumption of resulting trust and the law of undue influence, with respect to inter-vivos gifts (“Buffa”). Here, the deceased Giuliana Buffa (the “Deceased”), shortly before her passing, had given her daughter, the Respondent on appeal (the “Respondent”), a total of $1.7 million. As a result, the inheritance of the Deceased’s son, the Appellant who was a 45% beneficiary of the Deceased’s estate (the “Appellant”), was substantially diminished.
The application judge made the following key findings:
- The Respondent had a very close and loving relationship with the Deceased. In contrast, the Appellant and the Deceased had been essentially estranged since 2019.
- The Deceased named the Respondent as a beneficiary of her RRIF and TFSA, which was accepted as “clear intention of a gift”.
- The Deceased opened multiple joint accounts with the Respondent in which she deposited the sale proceeds of her condominium and other amounts from her investment accounts.
- The Deceased wrote two gift letters addressing the transfer of funds into the joint accounts.
- The Respondent lived “400 kilometers away” from the Deceased’s residence.
- Although the Deceased suffered from dementia and other health issues near the end of her life, the disputed transfers occurred shortly before these health issues were diagnosed/worsened.
On appeal – and specifically on the issue of undue influence – the Appellant alleged that the application judge had failed to consider whether a presumption of undue influence arose, which would have shifted the burden of proof upon the Respondent. The Court of Appeal disagreed with the Appellant, and affirmed the manner in which an allegation of undue influence ought to be analyzed in the context of an inter-vivos gift:
- The onus of proving undue influence is on the party who asserts it.[1]
- A presumption of undue influence arises where an inter vivostransfer is made within a relationship in which there is an inherent “potential for domination”. This is found in relationships of dependency such as between parents and children or a solicitor and client.[2]
- Where the presumption is found to exist, the onus shifts upon the recipient of the gift, who must establish, on a balance of probabilities, that the transfer was made with the donor’s “full, free and informed thought”.[3]
- Implicit in the application and appellate decisions, Buffa is authority that the existence of a relationship of dependency on its face, does not automatically mean that there is a presumption of undue influence.[4]
On the final point, even though the Respondent:
- was the Deceased’s daughter,
- had been in close contact with the Deceased at the time of the transfers, and
- implemented some of the transfers herself as the Deceased’s attorney for property,
the application judge found that a presumption of undue influence could not apply, and the Court of Appeal agreed. The Court of Appeal found no basis to question that there was “no evidence that the respondent acted in any inappropriate manner to convince Giuliana to give her gifts, that the transfers were made with the “full approval and consent” of Giuliana who “made her own decisions with respect to her finances”, and that Giuliana freely and deliberately gave gifts to the respondent.
Buffa demonstrates that undue influence should not be alleged loosely. Even where there are traditional indicators of dependency/influence, establishing the presumption of undue influence is difficult – not to mention proving undue influence outright! – and parties should tread carefully before litigating these issues.
Matias Gutierrez
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
[1] Vout v. Hay, [1995] 2 S.C.R. 976, at p. 887; Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 78, leave to appeal refused, [2016] S.C.C.A. No. 207.
[2] Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, at p. 378; Morreale v. Romanino, 2017 ONCA 359, 30 E.T.R. (4th) 21, at para. 22.
[3] Goodman Estate, at p. 379; Foley (Re), at para. 28.
[4] Buffa at para 38
Apr 23, 2026
As a mediator, I have seen the same dynamic play out in many power of attorney disputes. Sibling A swears that the parent suffering from dementia doesn’t trust Sibling B, and wants Sibling A to act as POA for property and personal care. Sibling B tells me the opposite: the parent is highly mistrustful of Sibling A and insists that Sibling B is the only one that can be trusted to make substitute decisions about finances and health care.
Most of the time, I believe both of them.
I try very hard in our caucus meetings to ask questions aimed at encouraging each of the parties to explore whether both things might be true. I am surprised at how closed litigants are to the possibility that Alzheimer’s disease is the true villain in the dispute.
According to the Alzheimer’s Association, “a person with Alzheimer’s may become suspicious of those around them, even accusing others of theft, infidelity or other improper behaviour”. [1] Yet, in power of attorney disputes, siblings are often unwilling to consider that the parent’s suspicions about their sibling might be unfounded.
Another feature of dementia is confabulation. It is a natural coping mechanism which happens when a dementia patient attempts to fill in missing gaps in their memory with things that are untrue. Rather than confronting the painful truth that the patient has no memory of that meeting with the lawyer or that discussion with Child A, the diseased brain protects the patient by supplying false memories.
Alzheimer’s disease lies to the people suffering from it. Dementia patients commonly experience anosognosia – the inability to recognize their own memory and cognitive deficits.
Logic would dictate that when a parent suffers from Alzheimer’s, and says two different things to two different people, the most likely explanation is that the disease has rendered the parent an unreliable narrator. And yet, so many siblings caught up in POA disputes immediately dismiss the disease as a possible contributor to the dispute. They confidently conclude that the only possible explanation is that their “evil sibling” is a liar.
Perhaps it is less painful to believe their sibling is lying (particularly a sibling they never got along with) than it is to accept that the disease has already progressed to the point that the parent’s words cannot be relied upon anymore. When a child has spent a lifetime looking to a parent for support, advice, care and judgment, it is difficult to accept that certain aspects of the relationship are now gone.
Many years of litigating and mediating these disputes have convinced me that litigation is a terrible way of resolving them. Once litigants reach the mediation stage, they have spent tens of thousands of dollars on legal fees, making them even more entrenched in the righteousness of their position. Too often the stumbling block to settling these cases is the sunk costs of the legal fees already spent.
I can’t help but wonder: What if the siblings had pursued mediation from the outset instead of going to court first? What if they had consulted dementia experts first before going to legal experts? What if they had focused on dementia as the enemy instead of their sibling?
Angela Casey
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
[1] https://www.alz.org/
Mar 19, 2026
A recent decision from the Toronto Estates List has brought into focus the challenges of acting as Section 3 counsel. In Groves v. Groves, 2026 ONSC 1206 (“Groves”), the applicants, Lori Groves and Mark Groves, sought guardianship over their father, John Groves (“John”), and an Order allowing them to apprehend John from his residence where he lived with the respondent, Lourdes Palmer.
John and the respondent had been in an intimate relationship since January 2023. The respondent, who was self-represented, did not seek guardianship over John but argued instead that a neutral guardian ought to be appointed. The respondent also alleged that John’s wishes were that he be protected from the applicants.
The applicants alleged that John, an 85-year-old man diagnosed with Alzheimer’s, had become involved in a predatory relationship with the respondent. The respondent removed John on three occasions from the retirement community where he had previously resided and where he received daily care. She also took John to open a new bank account and arranged for him to move into her home in Barrie. Beginning in March 2024, the respondent prevented the applicants from communicating directly with John and insisted that all communication “between John and his children or friends go through her”.
John had previously undergone multiple capacity assessments and there was extensive medical evidence surrounding John’s cognition and memory. For example, John was found to be incapable of managing property on February 10, 2023 by a capacity assessor. In August 2023, John’s family physician found he had progressive cognitive and functional decline and was vulnerable to “financial and medical abuse”. On June 15, 2025, John was found incapable of instructing legal counsel by another capacity assessor.
Section 3 Counsel’s Involvement
In May 2024, the respondent arranged for John to be represented by counsel. That private retainer was later converted into a section 3 counsel retainer by the Public Guardian and Trustee. Throughout the guardianship proceedings and at the final hearing, section 3 counsel expressed John’s wishes to remain with the respondent and to have access to his funds for travel with the respondent. Section 3 counsel also opposed the application for guardianship and submitted that a third-party attorney for property be appointed to manage John’s property instead. In advance of the application hearing, section 3 counsel filed a letter of wishes containing “John Groves’ position” and a statement of law. As a preliminary issue, the Court deliberated as to whether section 3 counsel’s letter and statement of law should be struck from the record.
The Court analyzed this issue in the context of section 3 counsel’s mandate under the Substitute Decisions Act, 1992, S.O. 1990, c. 30 (the “SDA”) and the applicable case law.
Apart from providing for counsel to be arranged for individuals whose capacity is in question, section 3 of the SDA explicitly deems the individual in question to have capacity to retain and instruct counsel. Early decisions relied upon this deeming provision to differentiate between the role of section 3 counsel and a litigation guardian. Although not relied upon in Groves, in Banton v. Banton 1998 ONSC 14926 (“Banton”), the Court found:
[34] Even in cases where the client is deemed to have capacity to retain and instruct counsel pursuant to section 3(1) of the Act, I do not believe that counsel is in the position of a litigation guardian with authority to make decisions in the client’s interests. Counsel must take instructions from the client and must not, in my view, act if satisfied that capacity to give instructions is lacking.
In Groves, the Court relied significantly on Dawson v Dawson 2020 ONSC 6724 (“Dawson”) which, in keeping with Banton, found that section 3 counsel and a litigation guardian each protect the interests of vulnerable people in distinct ways:
[33] Gomery J. noted that many s. 3 counsel make a tremendous effort to discern their client’s wishes and often provide the court with very helpful insight as a result. However, if they are unable to understand what a client wants, they cannot make decisions on that person’s behalf. By contrast, a litigation guardian stands in the shoes of someone under disability. They do not take instructions from the person under disability but make substitute decisions on their behalf, in accordance with their obligations and powers set out in r. 7.05.
Both Banton and Dawson demonstrate the inherent difficulty in acting as section 3 counsel. Section 3 counsel must continuously exercise their discretion in assessing whether and how their client’s wishes can be taken as instructions. This exercise is complicated in situations where capacity is fluid and where a client is vulnerable to being influenced by parties to the litigation. Underlying it all, lawyers acting as section 3 counsel may find it difficult to reconcile the limits of their role with ensuring that vulnerable individuals have a voice in proceedings that directly affect them.
The issue in Groves was that the Court found that section 3 counsel had overstepped their mandate by acting more like a litigation guardian. The Court found that, as of at least June 2025, John was incapable of giving instructions. A capacity assessment at that time found that John appeared unaware of any conflict with the applicants and the fact that he was represented by section 3 counsel. However, John still maintained an opposition to the application and his wish that section 3 counsel oppose the application despite having no memory of discussing the issue with section 3 counsel.
The Court dealt with the issue as a “matter of fact” finding that, because section 3 counsel could not obtain capable instructions from John, she was “without capable instructions notwithstanding the deeming provision in the SDA” (paragraph 44 of the decision).
On that basis, the Court gave little weight to section 3 counsel’s letter and the statement of law. The Court appeared very concerned at how section 3 counsel took legal positions which were consistent with the type of position that the respondent “would have been expected to take”.
As a matter of form, the Court also took issue with section 3 counsel seeking substantive relief and making assertions of fact within the statement of law, despite John’s apparent incapacity and no originating process or notice of motion to ground the substantive relief that was sought.
Ultimately, the applicants were successful, and the Court was especially unforgiving in its costs award as section 3 counsel’s costs were fixed to the costs that had been incurred prior to the assessment of incapacity on June 15, 2025.
Key Takeaways
Groves demonstrates that the role of section 3 counsel is a difficult one, existing in tension between:
- the duty to advocate for vulnerable individuals;
- the need to monitor capacity, which is often fluid; and
- the challenge of distinguishing between a client’s wishes and instructions that can properly form the basis of a legal position.
Groves adds to this tension. Other decisions have recognized that capacity assessments are not infallible and that capacity is fluid, and have accordingly treated the deeming provision as a “shield” affording section 3 counsel discretion to advocate notwithstanding an assessment of incapacity. For example, in Righter v. Righter, an unreported case, which was relied upon in Miziolek v. Miziolek, 2018 ONSC 2841 (CanLII) the Court found that despite an individual’s incapacity, section 3 counsel “still had a role to play – testing the jurisdiction of the court, authority to make orders, and making submissions on the evidence.”
Groves seems to direct section 3 counsel to immediately limit their involvement where there has been a specific assessment that the individual lacks capacity to give instructions or when there is overwhelming evidence of incapacity. Respectfully, this direction potentially undermines the role of section 3 counsel. A capacity assessment concluding that an individual lacks capacity to give instructions should not prevent section 3 counsel from expressing or acting upon what they deem to be clear wishes and instructions at a later date. To hold otherwise potentially marginalizes the role of section 3 counsel and is contrary to the purpose and function of section 3’s deeming provision.
This is not to say that Groves is inconsistent with section 3 and prior case law. Rather, Groves’ framing of John’s incapacity as a “matter of fact” that prevented section 3 counsel from taking a position or acting meaningfully after June 2025 obscures the underlying issue. At its core, Groves turned on the fact that the Court deeply disagreed with how section 3 counsel interpreted and exercised their role. In that sense, Groves is a testament to the precariousness of acting as section 3 counsel, and the importance of caution and investigation when obtaining a client’s wishes or instructions and acting on them.
In Groves, the medical evidence was extensive and strongly indicated that John’s wishes were unreliable and could not be taken as capable instructions on the issues in the application. On the other hand, can we fault section 3 counsel for their advocacy, and for acting upon wishes that appeared to be consistent throughout their involvement?
Matias Gutierrez
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
