Vulnerability and Volition in the Testamentary Law of Undue Influence and Captation
Bibliographic record
Abstract
This article examines how contemporary analyses of vulnerability theory are reflected in legal approaches to undue influence and captation in the Canadian common law of wills and estates and in the Civil Code of Québec in the law of succession. Critical theorists point to the risks of assuming that vulnerability lies exclusively with the elderly and persons with disabilities. The equation risks oversimplifying matters, which could compromise the equality and dignity of members of these groups. There is also a risk of overlooking the harm that may be suffered by those who are victims of social or economic oppression. A more nuanced approach posits that vulnerability is a common human trait that cuts across social identities and experiences. Due to prevailing assumptions about vulnerability, this article hypothesizes that challenges to wills based on undue influence and captation will most often occur when the testator is elderly and/or has a disability at the time of execution of the will. Canadian common law and Quebec civil law jurisprudence are examined to assess this hypothesis. This analysis reveals that certain conditions do give rise to triggers heightened judicial scrutiny of wills, but that they do not in and of themselves determine legal outcomes. The case law thus suggests a moderate—but tempered—risk that courts will draw presumptions about age and capacity when assessing the presence of undue influence or captation . Perhaps more significant is the absence of challenges to wills involving young and healthy testators. Jurists might therefore wonder whether we are at risk of overlooking some cases of untoward conduct due to the conceptual associations we make between age, incapacity and vulnerability.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.007 | 0.016 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.002 | 0.001 |
| Science and technology studies | 0.014 | 0.081 |
| Scholarly communication | 0.009 | 0.006 |
| Open science | 0.002 | 0.009 |
| Research integrity | 0.005 | 0.005 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".