The Presumption of Undue Influence in Buffa v. Giacomelli, 2026 Onca 566 (CanLII)

Undue influence is a legal principle that addresses circumstances where someone coerces another to make a decision, most often arising in estate litigation. A finding of undue influence allows the Court to invalidate transfers of property or the execution of Wills or powers of attorney, on the basis that they were not the product of the executor, transferor, or grantor’s free will.

In my experience, undue influence is used loosely. ‘Influence’ is broad and, consequently, vague. The body of law that has emerged around undue influence is rife with terms that require significant interpretation (see “potential for domination” from Goodman v. Geffen, 1991 CanLII 69 SCC).

In the context of estate litigation, where disputes center so often upon the decisions of elderly folks, it is easy for disgruntled parties to advance their interests by alleging undue influence. Parties can rationalize their suspicions by referencing the vulnerability of seniors or conflating a loving familial relationship with nefarious ‘influence’. The result is that undue influence has become something of a one-size-fits-all allegation: one that is not as readily addressed as concerns about capacity may be through the production of medical records, or concerns about knowledge and approval through the production of a drafting solicitor’s file.

In a recent decision, Buffa v. Giacomelli, 2026 ONCA 566 (CanLII), the Ontario Court of Appeal considered the difference between ‘motive’ and ‘donative intent’ in the context of rebutting the presumption of resulting trust and the law of undue influence, with respect to inter-vivos gifts (“Buffa”). Here, the deceased Giuliana Buffa (the “Deceased”), shortly before her passing, had given her daughter, the Respondent on appeal (the “Respondent”), a total of $1.7 million. As a result, the inheritance of the Deceased’s son, the Appellant who was a 45% beneficiary of the Deceased’s estate (the “Appellant”), was substantially diminished.

The application judge made the following key findings:

1. The Respondent had a very close and loving relationship with the Deceased. In contrast, the Appellant and the Deceased had been essentially estranged since 2019.
2. The Deceased named the Respondent as a beneficiary of her RRIF and TFSA, which was accepted as “clear intention of a gift”.
3. The Deceased opened multiple joint accounts with the Respondent in which she deposited the sale proceeds of her condominium and other amounts from her investment accounts.
4. The Deceased wrote two gift letters addressing the transfer of funds into the joint accounts.
5. The Respondent lived “400 kilometers away” from the Deceased’s residence.
6. Although the Deceased suffered from dementia and other health issues near the end of her life, the disputed transfers occurred shortly before these health issues were diagnosed/worsened.

On appeal – and specifically on the issue of undue influence – the Appellant alleged that the application judge had failed to consider whether a presumption of undue influence arose, which would have shifted the burden of proof upon the Respondent. The Court of Appeal disagreed with the Appellant, and affirmed the manner in which an allegation of undue influence ought to be analyzed in the context of an inter-vivos gift:

1. The onus of proving undue influence is on the party who asserts it.¹
2. A presumption of undue influence arises where an inter vivostransfer is made within a relationship in which there is an inherent “potential for domination”. This is found in relationships of dependency such as between parents and children or a solicitor and client.²
3. Where the presumption is found to exist, the onus shifts upon the recipient of the gift, who must establish, on a balance of probabilities, that the transfer was made with the donor’s “full, free and informed thought”.³
4. Implicit in the application and appellate decisions, Buffa is authority that the existence of a relationship of dependency on its face, does not automatically mean that there is a presumption of undue influence.⁴

On the final point, even though the Respondent:

1. was the Deceased’s daughter,
2. had been in close contact with the Deceased at the time of the transfers, and
3. implemented some of the transfers herself as the Deceased’s attorney for property,

the application judge found that a presumption of undue influence could not apply, and the Court of Appeal agreed. The Court of Appeal found no basis to question that there was “no evidence that the respondent acted in any inappropriate manner to convince Giuliana to give her gifts, that the transfers were made with the “full approval and consent” of Giuliana who “made her own decisions with respect to her finances”, and that Giuliana freely and deliberately gave gifts to the respondent.

Buffa demonstrates that undue influence should not be alleged loosely. Even where there are traditional indicators of dependency/influence, establishing the presumption of undue influence is difficult – not to mention proving undue influence outright! – and parties should tread carefully before litigating these issues.

Footnotes

1 Vout v. Hay, [1995] 2 S.C.R. 976, at p. 887; Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 78, leave to appeal refused, [2016] S.C.C.A. No. 207.

2 Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, at p. 378; Morreale v. Romanino, 2017 ONCA 359, 30 E.T.R. (4th) 21, at para. 22.

3 Goodman Estate, at p. 379; Foley (Re), at para. 28.

4 Buffa at para 38

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.