The Trouble with Undue Influence

One of the ways you can challenge the validity of a will is by showing that the testator was subject to ‘undue influence’ – but this is not always easy

Someone you were close to has died. Whatever the circumstances, this is always going to be a highly emotional and distressing time, with lots to reflect on and organise. When you are also concerned that the will made by the deceased does not reflect his or her true wishes, brought about by pressure from someone else, not only can it increase the stress you are under, but you will be left wondering what can you do? In this blog we look at the difficulties you will face if you are trying to prove that the contents of a will are the result of someone else placing ‘undue influence’ on the person who made the will (‘the testator’).

What is undue influence?

Undue influence is where the testator, the person making the will, was put under pressure, or coerced by someone else, to make the will in a particular way that does not reflect the true wishes of the testator. For example, I might want to divide my estate equally between my grandchildren, but one of my children might seek to pressurise me into leaving more to one grandchild than the other. My intention, my true wish might remain to leave my property equally to my grandchildren, but as the result of the pressure my child placed on me, I might give in and make my will in a manner that did not reflect this. Undue influence is rarely this simple – but hopefully you will see what we are getting at.

Undue Influence could manifest itself in a will that leaves out some people who might otherwise have expected to receive a share of the estate. Alternatively, it could be seen in a will that leaves more generous gifts to some people at the expense of others, and in a manner that is, at the very least, surprising. However, just because the contents of a will are unexpected, it does not mean that there has been undue influence at play. For a will to be invalid for this reason, the testator must have been subjected to physical or psychological pressure, and the will be drawn up in a way that does not reflect their true wishes.

Proving Undue Influence

There is a very high burden of proof as far as undue influence is concerned. It’s not enough to show that what has happened is consistent with undue influence being exercised – you must be able to prove that there is no other explanation for what has happened. The case that most recently looked at undue influence and set out the elements of undue influence is Edwards v Edwards , a case in which a man who had been excluded from his mother’s will brought a claim challenging the validity of his mother’s will on the grounds that his brother had exerted undue influence on their mother to achieve this result. In summarising the elements of undue influence, the judge said:

• There is no ‘presumption’ of undue influence – so whether there has been undue influence is a question of fact in each case.
• It is up to the person claiming undue influence to prove that this is the case, rather than the person accused of the undue influence having to disprove it. It is up to the claimant to prove that there is no other explanation or conclusion that can be drawn, so this is a high burden to overcome.
• For there to be undue influence, the coercion or fraud that has brought about the situation must have actually overruled the wishes of the testator – if the influence has simply confirmed what the testator might already have been intending, this is not enough.
• Equally, it is not undue influence if the testator’s judgment is changed – so that he or she is persuaded that he or she is doing the right thing in making the will. It is when the will does not reflect the true wishes of the testator and this has been brought about through pressure.
• Undue influence is not the same as fraud – by which we mean the fraud of someone telling lies about someone else to the testator with the aim of poisoning the testator’s mind against that person. This is ‘fraudulent calumny’, which we will look at in another blog.
• Finally, when determining whether someone has made their will under undue influence, it is not a question of whether the will is ‘fair’ but whether the testator was able to make the will freely.

Although it can be difficult to prove undue influence, it’s not impossible, and in another blog, we will look at some examples of circumstances that have (and have not) amounted to undue influence. Ultimately, it will depend on the circumstances in every individual case. If you feel that someone close to you has been pressurised into making a will that does not reflect their true intentions, you need to seek legal advice quickly. We’re happy to help – just get in touch!