The amount of estate litigation is rising. One reason descendants are more litigious is more complex family relationships. Second and even third marriages are creating webs of spouses, half-siblings, and step-siblings. 

Unfortunately, trust oftentimes breaks down among this web of family relationships. As distrust sours relationships among family members, real estate litigation lawyers are dealing with more accusations of undue influence resulting in unfair distributions of assets. 

What is Undue Influence?

Undue influence involves mental, moral, or physical exertion that interferes with the ability of a person to exercise his or her own free will.

Common situations that raise suspicions of undue influence include:

• A second spouse and her children inherit the lion's share of the estate.
• An advisor (financial manager, lawyer) inherits a lot of client money. 
• A common-law partner or confidant, often much younger, is the sole beneficiary of the estate and insurance policies. 

Proving Undue Influence 

Proving undue influence, however, is not easy. 

The charges are often based on circumstantial evidence. But evidence may exist showing that the will does not reflect the expressed intents of the deceased. 

Some clear signs of undue influence are:

• the estate assets are not distributed equally and fairly 
• the commonly intended heirs (e.g., children) are left out of the will 
• an advisor or advisor's relative is a beneficiary. 

In the case of Liliane Bettencourt, the ageing L'Oréal heiress suspected of having Alzheimer's, all these signs of undue influence were present. Fortunately, the exertion of undue influence by François-Marie Banier to make him the sole inheritor of Bettencourt's estate was recorded by a butler. 

Hearsay and Recordings 

But could you use a similar recording as evidence in Canadian estate litigation? Lacking additional written evidence beyond the will, both sides may argue that the descendant orally communicated his or her express intents in their favour. This evidence can be considered hearsay, and thus admissible under the discretion of the judge. 

But what if one party has a recording of the conversation? Recordings are sometimes presented by:

• An attorney - Recordings between a client and lawyer are typically protected under attorney-client privilege.
• A party to the litigation dispute - Recordings can be deemed hearsay. 

In both cases, however, the judge may rule the recordings are admissible in court for the purposes of providing evidence relevant to resolving the estate litigation. 

If you suspect a loved is or has been the victim of undue influence, consult an estate litigation lawyer for advice.