Undue influence

Introduction

It is important that when a person (known as the ‘testator’) makes a Will, the Will reflects their actual intentions and wishes, and not something forced upon them by a third party.  Pressure put on the testator in this way is referred to as ‘Undue Influence’.

This briefing note will give an overview of the law surrounding undue influence in the context of Will making.

What is Undue influence?

Undue influence is the use of force or pressure to make a person do something against their intentions.  This is applicable to both lifetime transactions and when making a Will.

The pressure needs to be more than just persuasion or reminding the testator of circumstances which might influence their decision making, such as reminding the testator of all the work that person has done for them during their lives, with the hope that this will be reflected in the Will the testator makes.

In order to be undue influence, the pressure put on the testator must amount to coercion or fraud, which then actually causes the testator to do something against his free will.  Pressure which overpowers the volition of the testator, while not convincing their judgement, will amount to undue influence.

How is it claimed?

If a person believes that a Will has been made under circumstances of undue influence, that person may challenge the Will by applying to the Court to have it declared invalid.  If this is successful, the deceased’s estate will be distributed in line with their previous Will or, if there is no prior Will, the rules of intestacy.

Succeeding in a claim of undue influence can be very difficult, as the person alleging the wrongdoing must prove it actually happened.  It can be an uphill struggle to show that the testator would not have made the Will in the way they did without the pressure which was exerted upon them.  There are also evidential problems due to the fact the main witness – the testator – will have passed away before the issue arises.  It is also frequently the case that substantial amounts of time will have passed since the Will was drafted.

It is not enough to show that the facts were consistent with undue influence, it needs to be proven that there is no other viable explanation for the Will being in the form it is, and this can be very hard to do. 

Conclusion

As explained above, a claim in this area is very hard to prove, but we are experts in this field.  We also have guidance notes relating to capacity, knowledge and approval of the Will’s contents and proper execution which may also be helpful to you.

If you believe the issues raised in this briefing note may be relevant to a matter you are involved in, please contact us for further advice.