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.
Apr 25, 2025
When someone is appointed as an executor of an estate or as an attorney under a Power of Attorney, they are usually provided with one original Will or Power of Attorney document signed in wet ink by the testator or principal. This document is known as the “original.” While acting in your role as executor or power of attorney, you may be asked to produce the original Will or Power of Attorney to prove that you are authorized to act on behalf of the Estate (if probate has not yet been received) or another person (for attorneyships). These requests usually come from financial institutions, healthcare providers, or the Canada Revenue Agency. Because there is only one original document, it is important to avoid giving it away permanently. A solution to this is to have notarized copies made.
What is a notarized copy?
A notarized copy of a document is a true copy of an original, meaning that the copy is verified to match the original exactly. This is done by a notary public (usually a lawyer or government official). A notarized copy includes a notarial certificate on the first page, which states the name of the notary and their attestation that the copy is a true copy of the original document. The certificate is signed by the notary and embossed with a red stamp called a “notary seal”. In most cases, a notarized copy holds the same validity as the original document. However, there are some circumstances where a notarized copy cannot be used (i.e. when you are applying to the court for probate).
Generally, our clients find it helpful to obtain several notarized copies of any original documents they hold, such as death certificates, original wills, powers of attorney, and probate certificates.
Stacie Chrysanthopoulos
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.
Jun 8, 2023
As an Executor, it is your responsibility to determine the value of the Deceased’s assets as of his or her date of death. Depending on the relationship between the Deceased and the Executor, this step can be easy or a little complicated. If you are not familiar with the Deceased’s assets, below are some ways an Executor would be able to determine the assets of the estate.
- Review the Will, if there is one: If the Deceased left a Will there may be mentions of assets that they own such as real estate, bank and investment accounts, valuable household items, jewellery etc. This would prompt the Executor to go searching for those assets.
- Search the Deceased’s personal belongings: If you have access to the Deceased’s residence, completing a thorough search of the Deceased’s personal belongings can also provide the Executor with an idea of what the Deceased owned as of his or her date of death. For example, locating financial statements, tax returns, mail, emails, and loyalty cards.
- Contacting Financial Institutions: Another way to search for information concerning the Deceased’s assets is to contact banks, investment companies and credit unions to request information on all accounts they are holding in the name of the Deceased. This also gives the Executor an opportunity to identify the liabilities of the Estate as the banks would normally also provide information regarding any mortgages or lines of credit the Deceased may have had at the time of his or her passing.
Overall, investigating estate assets can be very frustrating and time consuming. But with a lot of patience and good record keeping, the Executor can locate these assets and prepare a work plan to properly administer the estate.
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.
