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<< back to all ArticlesUndue Influence After Kozak
What has happened in the time since Kozak Estate (Re) was decided, and has the law changed
Introduction
Undue influence is among the most difficult grounds upon which to challenge a last will and testament (“Will”) or other estate planning instruments. Courts consistently stress that suspicion, unfairness, or family conflict are insufficient; the evidence must show coercion so profound that the will reflects the wishes of the influencer rather than the person making the Will (the “Testator”). As a result, successful undue influence claims are rare.
The 2018 Alberta Court of Queen’s Bench decision in Kozak Estate (Re) remains a leading authority on undue influence in Alberta and can be an aide to understanding undue influence in Canadian law at large. The case reaffirmed the high legal and evidentiary threshold required to set aside a Will, while also providing a rare example of circumstances in which that threshold was met.
This article reviews Kozak, its key legal principles, Kozak’s standing in law, and how subsequent courts in Alberta and other jurisdictions have applied—and largely reaffirmed— the approach to a case of undue influence.
Overview of Kozak Decision
In Kozak Estate (Re), 2018 ABQB 185 (“Kozak”), the Alberta Court of Queen’s Bench reaffirmed the stringent standard required to prove undue influence over a Testator, while providing a rare example in which that standard was met.
Theodore Laurence Kozak (“Ted”), a 72-year-old man in poor health, became increasingly isolated after meeting Maryann Seafoot. He distanced himself from family, sold long-held property, and made significant life changes while Maryann used the prospect of marriage to manipulate him. Despite Ted’s declining health and placement in extended care, Maryann provided minimal support, restricted family access, and misused his funds.
Upon Ted’s death in 2014, Maryann stood to inherit his entire estate under Wills made shortly after they met, with her son named as an alternate beneficiary. These Wills were ultimately set aside following a successful challenge by Ted’s sister and niece.
Justice Renke, who presided over the Kozak decision, made several key comments on the law of undue influence over a will:
What is undue influence?
Undue influence has been described as coercion, manipulation, victimization, and in some circumstance fraud; Regardless of the terms used, undue influence will be found where a Will reflects the wishes of the person influencing the deceased, rather than the deceased’s wishes. (Paragraphs 1-8)
What is not undue influence?
Undue influence is a distinct concept from testamentary capacity; an individual can have the capacity to create a Will while still being manipulated to do so to the benefit of someone else. (Paragraphs 9-10)
How do you prove undue influence?
The application “must establish that the likelihood of the will being the product of undue influence is more likely or more probable than the likelihood that it was not the product of undue influence” (Paragraph 12, emphasis added). Proving a mere possibility of undue influence is insufficient.
What quality of evidence is required?
Because undue influence is often affected in private or secret spaces, it can be difficult to provide direct evidence. Therefore, circumstantial evidence, including proof of facts that allow inferences to be drawn, can ground a claim of undue influence. (Paragraph 14)
What are the hallmarks of undue influence?
Isolation and change in behaviour are the two hallmarks or “indicia”, meaning indicators, of manipulation resulting in undue influence over a testator’s Will. (Paragraphs 179-186)
Subsequent Judicial Treatment
Kozak has been cited at least 16 times since it was decided, most often as settled authority on the nature of undue influence and the burden of proof. Recent cases, including Gordon Estate (Re), Buye v Fisher, and Maggs v Huggins, rely on Kozak to restate the legal test and “well-known principles” governing undue influence, while other courts, such as in Jung Estate v Jung Estate, 2022 BCSC 1298, have cited it extra-provincially. Kozak is frequently referenced alongside Geffen v Goodman Estate, 1991 SCC 69, a leading Supreme Court of Canada authority on undue influence. The only adverse treatment appears in McAndrew Estate (Re), 2020 ABQB 614, where the Court distinguished Kozak on the facts, they do so without undermining its legal principles. Of the cases citing Kozak, only Jung Estate resulted in a finding of undue influence, reinforcing Kozak’s core message that undue influence requires proof of coercion, which is a demanding standard that remains firmly entrenched in Alberta law.
Undue Influence in Alberta Courts Since Kozak
Since Kozak was decided in 2018, few reported Alberta cases have meaningfully analyzed undue influence in estate matters. Three decisions are particularly relevant, only one of which cites Kozak.
In Campbell v Ensminger, 2022 ABQB 330 the Court found no undue influence, instead relying on direct evidence that the Will was properly made and noting the challenger’s financial interest in the outcome. In Morin Estate (Re), 2020 ABQB 725 the claim failed for lack of evidence, with the Court confirming that testamentary incapacity cannot substitute for proof of undue influence. In McAndrew Estate (Re), the Court distinguished Kozak on the facts and held that the burden of proving undue influence was not met.
Notably, all three cases rejected the undue influence claims, leaving Kozak as the most recent Alberta decision in which such a finding was made.
Undue Influence in Courts of Other Jurisdictions Since Kozak
Courts in other jurisdictions have continued to find undue influence using an approach consistent with Kozak. In Abbruzzese v Tucci, 2024 ONSC 957, the Ontario Superior Court set aside estate documents after finding that a vulnerable Testator was coerced by one daughter to the detriment of another. As the Testator’s health declined, she became dependent and socially isolated, transferred most of her assets to the influencing daughter, and was misled about her other child’s involvement in her care.
In reaching its conclusion, the Court relied on the Gironda factors (see John Gironda et al v Vito Gironda et al, 2013 ONSC 4133), which overlap significantly with the indicia emphasized in Kozak, such as dependency, isolation, and substantial benefit to the alleged influencer. While framed differently, the analysis reflects the same contextual, fact-driven assessment of the relationship and context surrounding cases of undue influence.
Recent cases continue to confirm that the law of undue influence remains unchanged since Kozak, even where no such finding is made. In Wicklund v Denis and Yvone Blakely 2015 Joint Partner Trust, 2025 BCSC 1894, the Court reiterated that suspicion alone is insufficient, that undue influence concerns arrangements reflecting another’s wishes rather than the Testator’s, and that the analysis focuses on whether the relationship allowed for domination.
Although the Court found no domination on the facts, its careful, evidence-based review of the relationship, which included examining communications, personal characteristics, and medical evidence, closely mirrors the analytical approach endorsed in Kozak.
Concluding Thoughts
The subsequent case law in Alberta and courts across Canada has confirmed that the principles in Kozak are still at the forefront of the law on undue influence. While undue influence continues to be difficult to prove, these cases show that it is possible to give voice to a Testator’s true wishes in the face of manipulation where advocates, both legal and personal, are present.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
