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Seeing a Lawyer is Not an Inoculation Against Undue Influence

Kozak Estate (Re), 2018 ABQB 185 (CanLII)

[16]   A type of evidence that must also be considered in determining whether a will is the product of undue influence is whether the testator received independent legal advice. A finding of undue influence is not rebutted or made unlikely just because a testator received independent legal advice. Seeing a lawyer is not an inoculation against undue influence.

In the Alberta case of Kozak Estate, Renke J. found that the two most recent purported wills of the deceased (“Ted”) were the products of undue influence, and were therefore invalid. The influence had been exerted by the respondent (“Maryann”), who was the sole beneficiary under these purported wills. Renke J. found Maryann to have manipulated Ted with insincere promises of marriage, isolated him from his family, and made irresponsible use of his money.

The second of the two purported wills had been prepared by a lawyer named James Andreassen (“Andreassen”). Renke J. found Andreassen “to be highly competent and professional,” as well as cautious and prudent. Andreassen’s firm had a long-standing relationship with Ted’s family, and Andreassen assisted Ted not only in his estate planning, but also in real estate transactions and preparing powers of attorney. Renke J. explicitly avoided criticizing Andreassen in his analysis of the invalid wills.

Andreassen met with Ted alone, determined that Ted had testamentary capacity, and contemplated the possibility of undue influence without being able to positively identify any. On why Ted decided to change his estate plan late in his life, Andreassen’s view was that Ted was “a competent and unique bachelor who changed his mind,” and that Ted “was free to provide to whom he wished”.

At para 73, Renke J. began a clear explanation of the limited role of a lawyer in dealing with potential undue influence:

The difficulty any lawyer would have faced, not just Mr. Andreassen, was this: The client presents himself, meets alone with the lawyer, and capacity is established. Measures are taken to ensure that third parties do not interfere. No third party was present, the retainer is not by a third party, no communications affecting the will are received from a third party, no information is provided to a third party without the client’s consent.

Renke J. went on to explain that Andreassen had “accepted the narrative that was put to him by Ted,” which was that Ted was in love, and wanted to provide for Maryann. A will-drafting lawyer, Renke J. noted, is “structurally limited in terms of information access”. The process does not involve the lawyer independently investigating the client’s life, and the lawyer must instead rely on information provided by the client. Andreassen performed his work competently, but simply did not have access to information outside of his interactions with Ted that would have allowed him to evaluate Ted’s relationship with Maryann from a different perspective.

Apparently, in response to a suggestion from Maryann’s counsel that a testator can only be controlled by another when in that person’s presence, Renke J. found that this notion is incorrect. He noted that “[a] third party who has controlled and manipulated a client can continue to control and manipulate that client while not being physically present,” and further that “the mere presence of counsel does not by itself counter manipulation”. Meeting with a client alone does not preclude undue influence.

Whether a testator received independent legal advice can be an important consideration when potential undue influence it at issue. The practices and reputation of the drafting solicitor can also shed light on the validity of a testamentary document. The takeaway from Renke J.’s findings in Kozak Estate is that, while these factors can provide valuable evidence, none of them is a magic bullet that by itself can kill the possibility of undue influence. It is true that drafting solicitors must be prudent to ensure that their work reflects the client’s own wishes to the greatest extent possible. But it is beyond the ability of a drafting solicitor to perfectly guard against any and all coercion, and prudent practices do not guarantee that undue influence will not occur.

On a related note, Renke J. briefly made similar observations about medical records as evidence. A note stating that Ted was “happy and ‘100% in love’ with just ‘a wonderful woman’” was also found unreliable because it depended on an assumption that Ted’s own narrative about his relationship was accurate, and not a result of manipulation.

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