In part two of this blog series, I discuss whether controlling a testator’s access to alcohol could amount to undue influence, with some practice tips for will-drafting lawyers. This discussion is based on “The Impact of Alcohol on Testamentary Capacity” by Dr. Arlin Pachet, John E.S. Poyser, and Ryan H.K. Gorlick, which can be found in the Estates, Trusts and Pensions Journal, Volume 42.
To briefly recap part one of this blog series, alcohol consumption alone does not invalidate a will. Chronic alcoholism or heavy drinking could be sufficient to raise suspicious circumstances and could amount to a finding of a lack of testamentary capacity; however, the medical evidence must support an actual loss of mental function in order to find the testator lacked testamentary capacity when executing testamentary documents.
Controlling Access to Alcohol as Testamentary Undue Influence:
Is it possible for alcohol to be used as a means to control a will-maker? The test remains the same: in order to establish testamentary influence, it must amount to outright coercion. It is common knowledge that a person in a weakened or debilitated state, for whatever reason, is more susceptible to coercion, and alcohol may become the debilitating factor.
Alcohol could also be used to shape a person’s estate plan in the form of a pact. Some alcoholics require assistance with various tasks of daily living to properly function, they may also need help in accessing alcohol. A person wanting to influence an alcoholic may begin to help with various household chores in hopes of receiving some benefit. A relationship between the enabler and the alcoholic may evolve to the point where the alcoholic changes their will in the enabler’s favour. Essentially, a quid pro quo scenario that could be characterized as a “devil’s pact”: alcohol for the alcoholic; inheritance for the enabler.
Should a will be made in such a scenario, it is unlikely that a pact could void the will as such conduct would fall short of coercion; it is more akin to an arrangement. In 1909, the Supreme Court of Canada commented on testamentary pacts in Laramée v. Ferron:
…We must not…so render it impossible for old people to make wills of their little worldly goods. The eye may grow dim, the ear may lose its acute sense, and even the tongue may falter at names and objects it attempts to describe, yet the testamentary capacity be ample. To deprive lightly the aged thus afflicted of the right to make a will would often be to rob them of their last protection against cruelty or wrong on the part of those surrounding them and of their only means of attracting towards them such help, comfort, and tenderness as old age needs.
The first paragraph has been quoted several times to express judicial willingness to allow those with diminished capacity to make a will. The second paragraph states that testamentary funds can be a part of an exchange of value, inclusive of services rather than affection. Although the enabler’s intentions or actions can be akin to a predator, assuming the will-maker has capacity to enter such an arrangement, doing so is their choice. Although we may disprove “devil’s pacts” and find them to be highly unethical, or at minimum morally questionable, such an arrangement does not legally amount to undue influence as outright coercion is required to set aside a will.
A modern example of a testamentary pact based on caregiving, without reference to alcohol, can be found in Nassim v. Healey (2022).
In the 1885 decision of Wingrove v. Wingrove the Court described conduct amounting to undue influence as follows:
A man may be the companion of another, and may encourage him in evil courses, and in doing so obtain what is called an undue influence over him, and the consequences may be a will made in his favour. But this again, shocking as it is… will not amount to undue influence… …if the testator has only been persuaded or induced by consideration which you may condemn, really and truly to intend to give his property to another, though you may disprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she has no desire to do that it is undue influence.
This specific passage has been relied upon, in whole or in part by a wide range of Canadian Courts; specifically, Ontario cases such as Banton v. Banton (1998) and Scott v. Cousins (2001).
[Ultimately,] a pact for help and service will not invalidate a will unless the will-maker is coerced into signing a will that he or she does not want to sign…even where the core of the pact is an express or implied understanding to enable alcohol consumption…provided the will-maker is a willing participant, the will can be expected to stand unless the will is the product of coercion.
Enabling is not the same as coercion. An enabler can make a pact with the will-maker, and such can be relied upon to overturn a gift or other inter vivos transfer, but such rules do not apply to testamentary wealth transfers. In the case of a gift or other inter vivos wealth transfer, where equitable undue influence applies rather than testamentary undue influence, coercion is not required to prove inter vivos undue influence.
So, can control of alcohol give rise to a successful will-challenge based on testamentary undue influence? In short, no. However, it is possible to use alcohol as a form of coercion if the will-maker is in withdrawal and the predator controls the flow of alcohol, thus overpowering the will-maker’s free will.
Practice Tips:
Consistently, a detailed interview and contemporaneous notes remain the best starting point. For will-drafting lawyers, incorporate the various questions mandated by Banks v. Goodfellow (“Banks”) as a part of your process in taking client instructions and probe if their answers are vague or insufficient.
What is most important is that the will-maker can demonstrate the core competencies of successful will-drafting per Banks. Notably, to be most effective, such questions should be asked simultaneously when instructions are being given rather than during the execution of the will. For best practice, a full and successful interview during both of those times would be particularly probative.
If your client is a known alcoholic, the “golden rule” is to arrange a capacity assessment by a designated assessor; ideally, one that has experience with alcohol-related conditions and/or alcoholism. As the will-drafting lawyer, it would be helpful to probe for details regarding the alcoholism, such as:
- When did you have your last drink?
- How long have you been sober?
- Have you been diagnosed with anything that may impact your memory?
Given the highly personal nature of such questions, and considering many alcoholics tend to minimize or hide their condition, it would be advantageous to first explain to the client why such questions are necessary.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.