Capacity and Undue influence: A Unified Approach for Wills and Lifetime Dispositions

Abstract

As the result of longevity, ageing, and the prevalence of dementia, an increasing number of elderly people are vulnerable to financial abuse from within their families and beyond. The doctrines of capacity, undue influence, and lack of knowledge and approval of the will play a significant role in ascertaining the genuine intention of elderly adults in the making of inter vivos and testamentary gifts. These doctrines apply very differently depending on when the gift is intended to take effect. The present paper challenges this divide. It argues that situations where allegations of lifetime gifts are made after the passing of the donor do not justify a sharp dichotomy in approach from testamentary gifts, and calls for a more fine-tuned approach that accurately reflects the differences. In particular, it considers: (a) the extension of the presumption of capacity to testamentary gifts; (b) the extension of the current scope of undue influence in relation to wills; and (c) the proper role of the doctrine of lack of knowledge and approval of the will. It is hoped that a more coherent and rational framework will emerge from the calibration proposed by the paper.