Wills and the Doctrine of Undue Influence

We are often approached by clients who wish to challenge a will on the basis of what they consider to be ‘undue influence’ on the deceased, often owing to the fact that their expectations in what they might receive under the inheritance have not been met, or a will that they know was previously in existence has been changed, and they did not know it.

This article serves to give some insight to the current legal position, and how the law sees ‘Undue Influence’, and when it will act upon it to alter a will, or in some cases invalidate a will.

What is Undue Influence?

Undue influence is the act of applying pressure on a person to coerce them, essentially overpowering the individuals own mind and wishes. In relation to wills, this could be pressurising a person to include certain provisions in this will. Or indeed external evidence can be brought to show that threats have been made to the testator, or by other means, or that the testator is frightened of the person whom is making the undue influence.

Increasingly in our society we must take care to protect vulnerable people, and be certain that the wills for probate purposes are correct. This does not mean that a party cannot challenge the will.

When challenging a will on the grounds of ‘Undue Influence’, it is for the person who is alleging the undue influence to prove it, this means that from a technical point of view,  ‘Onus of Proof’ is on them, and sometimes this ‘Onus of Proof’, is difficult to achieve in the Courts eyes. There are no presumptions of Undue Influence to assist when it comes to wills. Unlike with lifetime gifts, there is no presumption that certain relationships place a person in a position of confidence and trust, that enables them to exert undue pressure of the testator.

To prove actual undue influence, it must be shown that someone has coerced the testator into writing their will in a certain way. It is not enough to show that the testator has merely been persuaded. It is not enough to show that the testator has simply changed their mind from a previous will. If the testator has been coerced into making their will in a certain way, then they have lost any freedom of choice. If the testator has genuinely retained their freedom of choice, then they have only been persuaded and the Courts will not intervene.

Coercion takes may forms. The level of pressure that is required to influence a testator, may also differ depending on their physical or mental wellbeing. The will of a weak and ill person maybe more easily overborne.

Influence maybe exerted by threats to the testator, physical or emotional bullying, or even just talking to the testator in such a way that it overpowers their view volition, and coerces them into acting in a certain way for the sake of a quiet life and making the pressure go away.

One such area is in respect of carers, including family carers, who may say to a testator something along the lines of, unless you leave me x I will no longer care for you.

It goes without saying, that me must take extra care with testators who are elderly, ill or socially isolated, as these types of testators are unfortunately more likely to be subject to financial abuse or undue pressure.

While there are currently no presumptions of relationships of influence in relation to wills, we must take care where someone who could be influential to the testator is present at the at the time of giving the instructions to the will, especially if they are insistent on being present or providing information for the testator. Care should be taken to ensure that investigation is carried out.