UNCONSCIONABLE CONTRACTS AND WILL CHALLENGES
As always, there are exceptions. The recent Ontario Court of Appeal Case in D.L.T. v. William Cooke Enterprises Inc., 2007 ONCA 573 gives a helpful restatement of the applicable principles applicable to the concept of unconscionability, which can operate to make otherwise enforceable contracts void. Basically, if the following four elements are present, there may be an unconscionable (and unenforceable) contract:
1. a grossly unfair contract;
2. the unfairly-dealt with party has no independent legal or other advice;
3. there is an overwhelming inequality of bargaining power between the parties; and
4. the party obtaining a windfall under the contract knowingly takes advantage of the other’s vulnerability.
It strikes me that the concepts are not so different from the grounds to be proven under the heading of undue influence in a Will challenge. What is very different, however, is that in a contracts case the testimony of the person who entered into the contract is available. In a will challenge, the testator’s testimony is, of course, inaccessible. Documentary evidence is generally fairly scarce as well.
While the hurdles of what needs to be proven are similar in both types of cases, they seem harder to clear in the Will challenge forum than that of contract law.
Thanks for reading.
Sean Graham
