What is the burden on a party alleging undue influence in making a will?

The burden on a party alleging undue influence is a heavy one. In Laramée v. Ferron (1909), 1909 CanLII 50 (SCC), 41 S.C.R. 391 Idington J. held: We must be careful not to substitute suspicion for proof. We must not by an extensive doing 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, comforts and tenderness as old age needs.

In Dacyshyn v. Dachyshyn Estate, [1996] B.C.J. No. 626 (S.C.), the following statement of the burden of proof was adopted from Freeman v. Freeman (1889), 19 O.R. 141 at 155: The undue influence which will set aside a will "must amount to force and coercion, destroying the free agency; it must not be the influence of affection or attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear”... I note in passing that reference to doing something for the sake of peace, and the implications it has in the context of the evidence in this case.