Recognizing And Understanding Undue Influence In Estate Planning

Undue influence is a troubling issue in estate planning as it is not always apparent to even the most experienced of lawyers when taking instructions from clients. The circumstances of influence are frequently not disclosed by a client, and the influencing party often does so privately and secretly. To constitute undue influence, the level of influence imposed by some other person on a testator must be:

...so great and overpowering that the document reflects the will of the former and not that of the deceased. In such a case, it does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his [or her] will-making power to the other person.1

There were two recent cases in Alberta which involved analyzing the will of a deceased testator on the allegation that the dispositions made in the will did not reflect the true wishes of the testator and were obtained by undue influence.

Kozak Estate

In Kozak Estate (Re), 2018 ABQB 185 ("Kozak"), Theodore Kozak ("Ted") entered into a relationship with Maryann Seafoot ("Maryann") in 2011 with the stated intention to be married at some point in the future. Ted was a 72 year old man and a lifelong bachelor who owned a farm in rural Alberta where he had lived his entire life. Maryann was approximately 56 years old and had adult children from prior relationships. Ted had a will drafted in 2009, naming his sister Yvonne Krezanoski ("Yvonne") as executor and beneficiary of his estate and her son as alternate beneficiary. Yvonne was also his named Attorney under his Enduring Power of Attorney and Agent under his Personal Directive.

Within two months of Ted and Maryann commencing their relationship in June 2011, Ted swiftly sold his long-term home to move into an acreage with Maryann in a town closer to where she had her social circle. Notably, they slept in separate bedrooms and had a relationship that outsiders noted as akin to a "landlord-tenant" relationship,2 despite Maryann purporting to agree to marriage at a later date.

Ted rewrote his will twice, first on September 8, 2011 and again on January 23, 2012, with the second version written in expressed contemplation of his marriage to Maryann. Ultimately, he removed Yvonne and her children as beneficiaries and replaced them with Maryann as primary beneficiary and her son, William inheriting if Maryann predeceased.

Ted also redrafted his Enduring Power of Attorney twice, once in February 2013 and again in June 2013, ultimately appointing Maryann and her son, William. The Personal Directive was also amended in June 2013 concurrently with the final amendment to the Enduring Power of Attorney, with Maryann named as agent and William as alternate agent.

Ted's health also deteriorated in 2013 and he was moved into a long-term care facility. Maryann visited infrequently and failed to pay for the long-term care facility or provide personal effects, care or support.3 Maryann drained the accounts of Ted over time in expenses and usage of VLTs in what the Court described as "a substantial pre-death transfer of wealth from Ted to Maryann."4 The Court found Maryann's testimony of a loving relationship to lack credibility.

It has been well established that the burden of proving undue influence...