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
May 27, 2026
An Estate Trustee (also known as an Executor) named in a Will is someone that will be responsible for the administration of an estate from start to finish. Choosing the right estate trustee can make estate administration significantly smoother for your loved ones. Choosing the wrong estate trustee can be costly and can delay the estate administration. For this purpose, there are several factors to consider when deciding on who should be the estate trustee of your estate.
Organizational Skills
Dealing with your own personal paperwork and finances can sometimes be overwhelming and time consuming. Now imagine someone else having to deal with it after you have passed away. One way to help your named estate trustee is to have your paperwork already organized. However, a good estate trustee would be someone who has the organizational skills to assist them with managing your estate assets, meeting deadlines, and ensuring that all tax returns have been filed.
Family Dynamics
In most cases, we see testators appoint close family members to be the executor of their estate. While there is absolutely nothing wrong with choosing a family member, you must consider if this family member will remain neutral. It may be significantly easier to choose a close family member especially if they are already aware of your assets. However, would the other beneficiaries trust this person? Do you think there would be any conflicts if this person is named as the estate trustee of your estate? These are just some of the things you must consider when choosing a close family member to be your estate trustee.
Trust
Last, but not least, choose someone you trust completely. Your named estate trustee should be someone who you know would respect your wishes regardless of what’s in it for them. This person must show that they can be reliable, diligent and be able to administer your estate with integrity. A dishonest estate trustee can create several financial and family problems that can delay the administration of your estate and cause unnecessary hardship for your loved ones.
Choosing the right estate trustee is very important in your estate planning process. By selecting someone who is organized, trustworthy and capable of handling the role, you can help reduce stress, provide a peace of mind for everyone involved and ensure your estate is handled the way you intended.
Felicia Cyril
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.
Oct 31, 2025
This is my first blog as a proud new lawyer at this fantastic firm, and I’ve decided to write about the role of financial institutions – banks in particular – in the early stages of estate litigation. The reason for this topic is in that this past year, banks have managed to play a big role in some of my and my colleagues’ files despite having no stake in the litigation.
I’ve created two scenarios, based upon these experiences, which will illustrate how banks can shape the early stages of estate litigation. My hope is that these scenarios can aid in understanding what banks may or may not do – which in turn, may help frame client expectations and inform early strategic decisions.
Scenario #1
Your client is the estate trustee and residue beneficiary of an estate. They have been acting for well over a year and have disposed of all the estate property and have distributed multiple cash legacies. All that remains is the residue. The accountant is waiting for a clearance certificate and anticipates no issues in that regard.
Your client decides to withdraw the residue now that everything appears OK.
When your client arrives at the bank, they are informed that the estate account has been frozen. The bank received a letter which indicated that ‘probate was being challenged’. The bank refuses to disclose any further information.
Your client calls you, obviously very concerned and stressed. They were really relying on this money. So, you contact the bank and they inform you of a few things:
- The letter did NOT enclose a court order, judgment, or writ authorizing the freeze.
- The letter was from a lawyer, who appeared to be representing a friend of the deceased.
- The friend was seeking to challenge the Will; however, they had not commenced proceedings of any kind.
- They refused to disclose the contact information of the lawyer until they obtained the other lawyer’s consent.
The authority that the bank was relying upon to freeze the account was the terms and conditions of their personal chequing accounts. As the estate account had formerly been a personal account, the estate account was bound to those terms. The terms allow the bank to unilaterally freeze accounts, without notice to account holders, if it is ‘unclear’ who the funds in the account belong to. The ‘freezing clause’ is a standard form term in all personal account agreements across the ‘Big 5’ Canadian banks.
You write a letter, demonstrating that your client is the only person with authority to act and arguing that the residue is held in trust for them, but the bank does not care. They advise that they ‘take no position’, and that they will be requiring either a court order or the consent of all parties, to unfreeze the account.
This is a paradoxical non-position: inert yet immensely prejudicial. Schrodinger would be proud.
To be fair to the bank and their policy, there is an obvious concern for liability. Yet the same terms that authorize the freeze also contain a waiver and indemnity, and where a bank obeys the authority of probate, who could realistically fault the bank for doing so?
Overall, this was a fantastic early victory for the Will challenger. Without going to Court, they’ve managed to obtain essentially a Mareva injunction. Where there is a risk of dissipation, parties should consider writing, at first instance, to all banks where the testator may have had accounts. The banks’ internal policies, terms, and conditions regarding personal accounts and estate accounts may result in a timely and effective freeze.
Scenario #2
Your client is a director and minority shareholder of a family business. The family business has been struggling with no business or activity in many months, but it remains the beneficiary of a sizeable life insurance policy insuring the life of your client’s father. Your client’s father was also a director and a majority shareholder of the family business. The father’s Will appoints your client’s brother as Estate Trustee. Your client and his brother are residue beneficiaries.
Your client’s father passes away, and the policy becomes payable. It is not technically an estate asset, although it benefits the family business to which both your client and his brother are entitled.
Unbeknownst to your client, the brother, who has yet to obtain probate, writes to the bank asking for the business accounts to be frozen based upon his authority as the named Estate Trustee and expressing concern that your client may steal company funds. The brother is highly suspicious and does not trust your client in the slightest. The brother believes that your client will abscond with the life insurance funds through his position as director/shareholder. The brother eventually intends to pursue legal action on behalf of the estate against your client and claims there is troubling evidence that your client has committed wrongdoing.
You help your client investigate and you later find out that the bank denied his brother’s demand. Their position was that as his brother was not an authorized signatory to the corporate accounts, the bank would not freeze the account without a Court order. It turns out that the terms and conditions of corporate accounts are much less draconian than personal accounts, and further, they impose a burden upon the corporate accountholder to ensure account security. When considering requests to freeze corporate accounts, it seems the banks rely solely upon who is an authorized signatory (and a handy waiver/indemnity).
Perhaps if the brother had probate, the bank would have listened. However, the challenger in Scenario #1 certainly did not have probate – and yet the bank still felt compelled to freeze the account.
I’m sure I will encounter more scenarios such as these in the future, where banks will influence the nature of litigation early on with profound consequences. Knowing that banks will take these types of ‘non-positions’ can help frame client expectations and encourage early action where it benefits client interests.
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.
Oct 8, 2025
When a loved one passes away, their executor (the person named in the will to manage the estate) steps into a huge responsibility. They must pay bills, manage assets, and distribute property to beneficiaries. Sounds straightforward, right?
Not always.
One Ontario case, Zimmerman v. McMichael Estate, shows exactly what can go wrong when executors don’t keep proper records. The court’s message was clear: executors must document everything, or risk personal consequences.
What Happened in Zimmerman v. McMichael Estate?
At the heart of the Zimmerman case was a simple, but critical, problem: the executor had not kept proper records of how estate assets were handled. Beneficiaries grew suspicious that money had been mishandled, and when they asked for an accounting, the executor could not produce satisfactory documentation.
The court ultimately found that this lack of transparency was unacceptable. Executors are fiduciaries, meaning the law requires them to act with honesty, care, and loyalty to the beneficiaries. That duty includes maintaining a clear record of every decision and transaction made on behalf of the estate. Without proper documentation, the executor could not prove that they had fulfilled their obligations.
What This Means for Executors
The Zimmerman case serves as a cautionary tale for anyone serving as an executor. Even if an executor is acting in good faith, failing to keep proper records can backfire. Without receipts, statements, or written explanations, beneficiaries may begin to question whether funds were used appropriately. Once trust is lost, disputes are far more likely to end up in court.
Executors must remember that they can be held personally accountable if they cannot justify their decisions. In the Zimmerman case, the court made it clear that the burden of proof rests on the executor, not the beneficiaries. This means that careful and consistent record-keeping is not just best practice – it is essential for protecting both the estate and the executor.
How Good Records Protect Families
Keeping good records benefits everyone involved in the estate process. For executors, proper documentation provides a shield against false accusations or misunderstandings. It allows them to show, step by step, that they carried out their duties responsibly and in line with the law.
For beneficiaries, good records build confidence in the process. They can see exactly how assets are being managed and distributed, which reduces suspicion and helps preserve family relationships at a time when emotions may already be strained. Most importantly, proper record-keeping prevents unnecessary litigation, saving the estate both time and money!
How Executors Can Stay on Track
Being an executor can feel overwhelming, especially if it’s your first time taking on the role. The reassuring news is that you don’t have to navigate it alone. Keeping receipts, bank records, and important correspondence together in one place goes a long way in staying organized, and offering regular updates to beneficiaries helps build trust and keep the process running smoothly.
If you feel unsure about the process, it’s completely normal to reach out to a lawyer or accountant for guidance. They can take some of the weight off your shoulders and make sure everything is done properly. By staying organized and asking for help when needed, you can carry out your duties with confidence and peace of mind.
The Takeaway from Zimmerman v. McMichael Estate
The lesson from this case is straightforward: record-keeping is not optional. Executors must document every action they take in administering an estate. Doing so protects them from liability, reassures beneficiaries, and ensures that the wishes of the deceased are respected.
Diana Begaliyeva
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.
Oct 8, 2025
I love hearing from readers of our blogs. It’s exciting to know people are reading and thinking about them, but beyond that, it’s such a pleasure to connect with other lawyers and discuss the law, outside of any specific dispute.
In my blog of January 9, 2024, When Does Marriage Revoke a Will, I puzzled about the Bill 245 amendments to sections 15 and 16 of the Succession Law Reform Act, which repealed the sections on marriage revoking a Will, and when those amendments could be said to take effect. Did they apply only to marriages after December 31, 2021 (the date the amendments took effect), only to Wills made after that date, or only for Deceased people who died after that date? Without a transition provision, it was not entirely clear.
Since writing that blog, I have heard from counsel who argued the case that the court has decided this issue. In Bolotenko v Wright Estate, 2025 ONSC 1154, the estate trustee, Aleksandr Bolotenko, sought direction from the court on whether Bill 245 applied retroactively. In that case, the Deceased died in April 2022 (after the SLRA amendments), his Will was dated March 8, 1999, and he married in February 2003. The estate trustee sought direction on whether the Bill 245 applied retroactively such that the Will was not revoked. The court held that there was no retroactive application: any marriage before January 1, 2022 had the effect of revoking any existing Will.
Now comes an interesting twist, flagged for me by another lawyer/blog reader. If the repeal of SLRA section 15(a) (which previously stated that a Will is revoked by marriage) only applies to marriages after December 31, 2021, does the repeal of the saving provisions in section 16 have a similarly delayed application?
Section 16 was repealed in its entirety by Bill 245. Previously, it set out specific situations where a Will could remain in effect despite a subsequent marriage:
16 A will is revoked by the marriage of the testator except where,
(a) there is a declaration in the will that it is made in contemplation of the marriage;
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.
Logically, it seems that the timing of the section 16 revocation must follow that of section 15(a). If marriages before January 1, 2022 revoked existing Wills, then the section 16 provisions remain in place to save such Wills that would otherwise be revoked. The court in Bolotenko v Wright Estate applied as much. The court at paragraphs 1-2 considers whether the Will had any saving provision as described in the old section 16 (a). This seems to suggest that section applies in its entirety to pre-January 1, 2022 marriages. For example, a spouse could continue to elect under the old section 16(b) to take under the Will, regardless of its revocation.
I look forward to reading and hearing more about the court’s consideration of these provisions!
Laura Cardiff
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.
