Presumption of Undue Influence

There are many court cases that define undue influence, and most state something to the effect that the influence must overbear the will of the person influenced so that in truth what she or he does is not his or her own act.

In the decision Canada Trust Company v Ringrose 20009 B. C. J. 2530 The Court held that the presumption of undue influence is triggered once a relationship with the potential for domination has been established and can apply where a parent transfers property to an adult child.

It is not the case that a gratuitous transfer from a parent to an adult child automatically creates a presumption of undue influence.

The decision Calmusky v Karaloff 1947 S. C.R. 110, the court held that the presumption of undue influence does not automatically arise upon a transfer of valuable property from an elderly parent to a child in circumstances where the parent is in good health and has possession of all his or her faculties.

However the courts have held that the presumption of undue influence does apply if the relationship between elderly parent and child is characterized by dependency.

Thus in the case of an old and sick parent, a child may easily assume relationship of dominance over that parent.

Some case law has identified such relationships as being ones of dependency.

The leading case in this area is the Supreme Court of Canada case of Geffen versus Goodman Estate from 1991.