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- 12 February 2019


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Gifting - Presumption of Undue Influence

Estates - Pre-Testamentary Gifts - Presumption of Undue Influence

Morreale v. Romanino (Ont CA, 2017)

Here the Court of Appeal briefly canvasses when a presumption of undue influence arises subsequent to a gift being made:
[22] In the case of voluntary gifts, whether the presumption of undue influence arises begins with an examination of the relationship between the parties and the first question to be addressed, in all cases, “is whether the potential for domination inheres in the nature of the relationship itself”: Geffen, at p. 378. This test embraces those relationships that equity has already recognized as giving rise to the presumption, including parent and child: Geffen, at p. 378.

[23] However, while the test embraces relationships that have been recognized as giving rise to the presumption, it is not enough to simply show that such a relationship exists. Even for such relationships, the presumption does not arise unless it has been established that there is the potential for one person to dominate the will of another. The test requires the trial judge to consider the whole of the relationship between the parties to see if there is the potential for domination, rather than looking for a specific act of coercion or domination.


[33] I also reject the appellant’s contention that the trial judge’s analysis fell short because she failed to draw an adverse inference from the respondent’s failure to call the lawyer who acted for the Ruccias and the respondent on the sale of the Beck Drive property and the purchase of the Russell Stover property. In my view, this contention cannot stand in light of the fact that independent legal advice is not required in order to rebut the presumption of undue influence: Bank of Montreal v. Duguid (2000), 2000 CanLII 5710 (ON CA), 47 O.R. (3d) 737 (C.A.), at paras. 26-27.

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