But I don’t want to do it: Undue Influence and Fraud
Ever felt like you had to do something, even though you really didn’t want to?
Most of us consult with friends and family before making big decisions, but occasionally our families’ good advice crosses a line from support into outright directives, blackmail or even threats.
We can be influenced by our friends and family (and often should be, to some extent), but when we start feeling like we have to do what they ask us, even if we really, really don’t want to, we are experiencing a form of fraud known as undue influence.
Undue influence is when one person uses their influence over another to get them to do something they wouldn’t normally have done. There are two types of undue influencers – the first being people in a community, like an employer, a minister or a politician, and the other being family members.
In both cases, the power balance between the parties is unequal, and the more powerful person uses their power to get the other to do something they want, like hand over their assets. This can be done by any implied or outright threat to your health, safety, well being or assets (or of a loved one).
The difference between consulting with another person and being unduly influenced by them is whose wish ends up getting followed.
For example, imagine you are 85, and your adult daughter (who lives with and cares for you) asks you to add her as a joint owner on your bank accounts, or on title to your property.
If the ultimate decision to add your daughter on title was truly your own decision, and that decision was made freely and voluntarily, with a careful thought as to what that transfer would mean for your remaining finances and your estate, great.
But if you did this because you believed your daughter wouldn’t care for you any more, wouldn’t get your groceries any more, or would put you in a home if you didn’t do it, then you are not making that decision of your own free will. You are being unduly influenced.
Undue influence is a form of fraud, which means that not only would any actions you took be potentially void, or voidable, but the person who unduly influenced you could be charged with an offence under the Criminal Code of Canada. Undue influence also negates capacity, which means that a judge could find that you were incapable of making a good decision because you were operating under duress.
When we are helping you carry out legal actions such as adding a family member on title to your property, or appointing an attorney under a power of attorney, we have to take steps to make sure that you are instructing us of your own free will – that you are not being unduly influenced.
This might mean we see you by yourself to ask you about your intentions, and to ensure that you truly understand the consequences of your actions. So don’t be surprised or offended if we ask your family members to wait in the lobby when you come to see us – ultimately, it’s for your protection, and theirs. We want to be able to show a judge that you came to your decision all by yourself, with no coercion.
Visit our website for a notary near you, so you can discuss these issues with us in person.