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Duress and Undue Influence (page 251)

  1. Presumption based on a special relationship. In certain categories of relationships, the courts will presume the presence of undue influence, and if the presumption is not rebutted, the contract will be set aside. As noted in the textbook, in contracts between parents and adult children and between spouses, undue influence is not automatically presumed but may be established in certain circumstances. For a case involving improper arm-twisting between an elderly parent and an adult child, see Dansereau v. Vallee in the Cases section below.
  2. Presumption based on unique circumstances. For an Alberta case in which the Court held that members of the victim’s family had a dominating relationship with the victim and were unable to rebut the presumption of undue influence, see Sabol (Trustee of) v. Rousseau in the Cases section below.
  3. Undue influence determined from facts. For an Alberta case in which the Court found that there was evidence of actual undue influence, see Stewart v. Book (1992), 130 A.R. 344 (Q.B.).

Of course, if the party accused of undue influence can convince the court that in fact, there was no such influence, any presumption is rebutted and the contract is binding. When it can be demonstrated that the potential victim followed independent legal advice, it is very likely that the courts will enforce the agreement. The independent legal advice must have been given by a lawyer who knew all the relevant circumstances and must have been advice a competent and honest adviser, acting solely in the interests of the recipient of the advice, would have given. See Spaan v. McGuire [1950] 1 W.W.R. 433 (Alta. T.D.).

It must be stressed that the terms of an agreement must be reasonable in such circumstances for it to be enforced. The courts will resist enforcing a contract that conveys great advantage to one of the parties, whether or not independent legal advice has been taken. For a good discussion of the doctrine of undue influence, see Goodman Estate v. Geffen in the Cases section below.






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