When a Will reflects coercion rather than free choice, Ontario courts can step in. A recent decision shows how judges assess “undue influence” and what evidence matters most.
In Ontario, a Will can be challenged where the person who made it was effectively coerced into signing, such that the document reflects someone else’s wishes, not the testator’s. That is exactly what the court found in Abbruzese v. Tucci, a case that offers practical guidance for families and estate trustees dealing with allegations of undue influence.
The story behind the dispute
Maria and Carlo Ianerrelli immigrated to Canada from Italy in the early 1960s. They lived in a jointly owned home on McLeod Avenue in Toronto and had two daughters, Angela and Bernadette. Carlo died in 2005 and Maria remained in the home. In 2009, after separating from her second husband, Bernadette moved in with Maria. In 2007, Maria made a Will that left her house to both her daughters. In 2016, she changed course: she made Bernadette the sole executor and transferred title to the house into joint names with Bernadette.
Maria died in 2018 at age 88. After learning of the 2016 Will and the transfer of the home, Angela brought a court application challenging both. She alleged that Maria lacked the required mental capacity and that Bernadette had exercised undue influence over her mother.
How courts assess undue influence in Will challenges
After hearing evidence from both fact witnesses and expert witnesses, the court applied the factor-based approach described in Gironda v. Gironda. In plain language, the question is whether the beneficiary exercised an “overbearing” influence that displaced the testator’s free will. The court looks at the full context, including vulnerability, dependence, isolation, and whether the estate plan changed in an unexpected way.
What the court found in Abbruzese v. Tucci
The evidence showed that Maria was afraid of being alone and increasingly dependent on Bernadette for day-to-day living. Maria could not use the phone on her own. When she did speak with Angela—with the help of her grandson Joey—she would end the call quickly when Bernadette returned. Although there was no explicit threat that Bernadette would abandon Maria if she refused to change her estate plan, the court concluded Maria effectively had no meaningful alternatives and felt compelled to do what Bernadette wanted.
Justice Gilmore concluded that Bernadette had exercised “overbearing power” over Maria and that the 2016 Will was the product of undue influence.
Need advice? If you are considering a Will challenge, or defending one, timely legal advice can make a difference. Contact CP LLP to discuss the options, evidence, and court process that may apply in your situation.
Common red flags that can indicate undue influence
• A sudden change from a long-standing estate plan (especially where one child is unexpectedly excluded).
• A major transfer of assets before death (for example, putting a home into joint names).
• Growing dependence on the main beneficiary for care, transportation, meals, or communication.
• Isolation from other family members or friends, including controlled phone access and “supervised” visits.
• The beneficiary arranges the lawyer and is involved in appointments, instructions, or communications.
• Explanations for changes that sound rehearsed, inconsistent, or out of character for the testator.
If any of these issues are present, it is worth getting advice early. Undue influence and capacity cases are evidence-driven: key witnesses, medical records, solicitor notes, and the timeline of events often determine the outcome.
This article is provided for general information only and is not legal advice. Every situation turns on its own facts.
The Gironda factors (and how they played out here)
• Dependence on the beneficiary (emotional/physical needs): Maria was increasingly dependent on Bernadette, particularly after her PMR diagnosis. By 2016, the evidence suggested Maria’s day-to-day functioning was significantly limited.
• Social isolation: The evidence included refusals of outside care, discouragement of visitors, restricted communication with Angela, and Bernadette’s consistent presence during visits.
• Recent family conflict: The court considered the broader family dynamics and tensions relevant to how influence could be exerted.
• Recent bereavement: Maria’s husband’s death in 2005 had a lasting impact that affected her vulnerability over time.
• Substantial pre-death transfers to the respondent: Maria transferred the bulk of her estate by placing the home into joint names with Bernadette in 2016, putting significant assets under Bernadette’s control before death.
• A new Will inconsistent with prior Wills: The 2016 Will departed from the 2007 Will, which had treated both daughters as beneficiaries of the home.
• No clear explanation for unexpectedly excluding a family member: The reasons given for the change were treated as unpersuasive; the court found the explanations appeared repeated in a “programmed” manner (as characterized in the evidence).
• Use of a lawyer previously unknown to the testator and chosen by the respondent: The evidence showed the lawyer involved was not Maria’s prior solicitor and that the meeting was arranged through Bernadette’s connections; the court also inferred Maria was coached on what to say and do in her interviews.
Dan Chitiz