Attacking Wills: Fraud as a Species of Undue Influence*

Lawyers generally have a good working knowledge on how and when to attack a will based on testamentary undue influence. Less known is how and when to attack a will based on testamentary fraud, a sister doctrine. The following sets out the basic law on point:

Testamentary undue influence is typically thought of in terms of coercion. There is good reason for that. Dozens of cases have stated that conduct must amount to coercion if it is to amount to testamentary undue influence. Yet there are also abundant comments in the same cases and others that open the door to characterize testamentary fraud as a second type of conduct that can amount to undue influence. Coercion forces a person to do something against his or her will. Fraud operates differently. Testamentary fraud is an effort to fool a person into believing a false state of affairs that is then instrumental in causing that person to make a testamentary gift that otherwise would not have been made. As indicated earlier, persuasion is permitted, but persuasion is not permitted when it is mounted on a foundation of deliberate lies. Testamentary undue influence by coercion is difficult to establish. It is often pled but rarely proved as the facts rarely sustain it. Undue influence by fraud will be more easily sustained. Isolation, falsehood, and ingratiation are a common recipe employed by predatory family and peers in a bid to subvert a vulnerable person’s property at death.

Early English cases made it clear that fraud could be used to attack wills based on those types of fact situations and that testamentary fraud was a variant of testamentary undue influence.

Some Canadian cases have followed suit. This type of attack is under-utilized, perhaps because it is easily confused with its equitable counterparts:
It is important to recognize and maintain the distinction, alluded to earlier, between the use of the word “fraud” at common law and the use of the same word in equity. Common law fraud involves falsehood that is intentional. Equitable fraud also applies where intentional falsehood is involved, thereby covering some of the same ground, but extends more broadly to any breach of equitable duty. The fraud under consideration here and applicable to wills is common law fraud, not equitable fraud. Equitable fraud does not apply when the court is deciding whether to admit a will to probate.

Equitable fraud is cast so broadly that it applies to any inter vivos transaction that proceeds in breach of any equitable duty imposed by the Court of Chancery. It applies to gifts and other inter vivos wealth transfer transactions, but has no application to wills and other testamentary ones.

* John E.S. Poyser BA, LLB, TEP provides estate litigation services for clients, as well as opinion work for other lawyers, and has offices in Manitoba and Alberta (