By Z Legal Professional Corporation – Estate Litigation Lawyers in Toronto
Undue influence is one of the most common—and most misunderstood—grounds for challenging lifetime gifts and real estate transfers in Ontario estate litigation. It frequently arises where property is transferred shortly before death, particularly within families or caregiving relationships.
Ontario courts have made clear that a transfer does not need to be overtly fraudulent or unfair to be set aside. In many cases, the law presumes undue influence based solely on the nature of the relationship between the parties.
This article explains how the doctrine of undue influence works in Ontario, when the legal presumption arises, and how it can be rebutted—drawing on recent and leading case law.
What Is Undue Influence?
The doctrine of undue influence applies to a wide range of transactions, including:
- Gifts
- Contracts
- Transfers of real estate
- Inter vivos (lifetime) property transactions
The Supreme Court of Canada has confirmed that the analysis begins with the relationship between the parties, not the transaction itself (Geffen v. Goodman Estate, [1991] 2 SCR 353).
In estate litigation, undue influence often arises where one person is in a position to dominate or control the will of another, particularly when the transfer is voluntary and benefits the recipient.
Undue Influence and Lifetime Real Estate Transfers
Real estate transfers made during a person’s lifetime—such as adding a child to title or transferring property outright—are considered inter vivos transactions. Unlike wills, these transactions may attract a presumption of undue influence, depending on the relationship.
A presumption of undue influence arises where:
- The parties are in a relationship of influence, and
- One party has the ability to dominate the will of the other
The Supreme Court of Canada explained that this potential for domination “inheres in the nature of the relationship itself” (Geffen v. Goodman Estate).
When Does the Presumption of Undue Influence Arise?
For voluntary gifts, including transfers of land, the presumption arises if the relationship between the donor and the recipient was such that the recipient had influence or the ability to dominate the donor’s will.
Importantly, the applicant does not need to prove:
- Exploitation
- Unfairness
- A bad bargain
- An actual improper motive
Ontario courts have confirmed that establishing the existence of a dominant relationship alone is sufficient to trigger the presumption (Keljanovic (Estate of) v. Sanseverino; Re Hartin Estate, 2024 ONSC 5754).
Shifting the Burden of Proof
Once circumstances giving rise to the presumption are established, the burden shifts to the recipient of the gift or property.
The recipient must prove—on a balance of probabilities—that the transfer resulted from the donor’s:
“Full, free, and informed thought”
(Re Hartin Estate; Playford v. McRae, 2024 ONSC 5374)
This is often the most difficult part of an undue influence case.
How Can Undue Influence Be Rebutted?
A defendant may rebut the presumption by showing, for example:
- There was no actual undue influence
- The donor received independent legal or professional advice
- The donor fully understood the nature and consequences of the transaction
- There is corroborating evidence supporting the donor’s intention
Corroborating evidence may be:
- Direct or circumstantial
- A single strong piece of evidence or
- Multiple pieces considered cumulatively
Case Example: When Influence Is Not Undue
In Keljanovic (Estate of) v. Sanseverino, the Ontario Court of Appeal considered a transfer of land that changed ownership from a tenancy in common to a joint tenancy—effectively giving the surviving joint tenant the entire property upon death.
Although influence was present, the court found:
- The donor was strong-willed
- She understood the consequences of the transfer
- Her free will was not overborne
As a result, the presumption was rebutted and the transfer upheld.
Similarly, in Geffen v. Goodman Estate, a trust deed transferring a home was treated as a gift. While the relationship triggered the presumption, the evidence ultimately rebutted it.
Parent–Child Relationships and Undue Influence
A parent-child relationship does not automatically give rise to a presumption of undue influence.
The presumption only arises where the relationship is characterized by:
- Dependency
- Control
- Dominance by the child
The key question is whether the parent could assert their own will and act independently—a factual determination in every case (Playford v. McRae).
Case Example: Dependency and Real Estate Transfers
In Re Hartin Estate (2024), the Ontario Superior Court found that the presumption of undue influence applied where the deceased:
- Was totally dependent on her daughter
- Relied on her for shelter, personal care, transportation, social needs, and finances
- Transferred funds and real estate during that period of dependency
Because the daughter could not establish that the transfers resulted from the deceased’s full, free, and informed decision-making, the presumption was not rebutted.
Why Undue Influence Claims Matter in Estate Litigation
Undue influence claims frequently arise in disputes involving:
- Last-minute property transfers
- Changes to title before death
- Caregiver or child beneficiaries
- Disinherited family members
- Informal “estate planning” without legal advice
These claims can result in property being returned to the estate, constructive trust remedies, or significant financial consequences.
Speak With an Ontario Estate Litigation Lawyer
Undue influence cases are highly fact-specific and often turn on subtle evidence of dependency, control, and decision-making capacity. Early legal advice is critical—whether you are challenging a transaction or defending one.
Z Legal Professional Corporation is a Toronto-based estate litigation law firm with extensive experience in:
- Undue influence claims
- Challenging real estate transfers
- Constructive and resulting trust claims
- Will and estate disputes
📞 Contact Z Legal today to schedule a consultation with an experienced Ontario estate litigation lawyer.