What is undue influence?
It is possible to have a Will set aside on grounds that it was procured by means of undue influence. This is the idea that a testator has been influenced by coercion, in the sense that their Will must be overborne or by fraud.
Whether this has happened is a question of fact in each case and the burden of proof rests with the person who asserts it. Crucially, it is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. This places an onerous evidential burden upon those who wish to challenge the validity of a Will on grounds of undue influence.
Pressure of whatever character if so exerted as to overpower the testator’s own volition will constitute undue influence. A challenger will need to show:
- The defendant had the opportunity to exercise influence
- They did exercise influence
- That influence exercised by the defendant was undue
- The Will was brought about by these means.
The following would not amount to conduct supporting an allegation that a Will had been procured by means of undue influence:
- Genuine help and assistance to the deceased
- The deceased’s gratitude for that help
- Family ties
- Religious/cultural reasons
- Appeals to affections
- Appeals of destitution
The following would amount to undue influence:
- Physical violence.
Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment, discretion or wishes, is enough to amount to coercion in this sense.
The physical and mental health of the testator is highly relevant in determining how much pressure is necessary to overbear their will. The will of a weak and frail person may be more easily overborne than that of a strong and healthy person.
There is a separate ground for challenging a Will on grounds of fraud. This is called “fraudulent calumny”. The basic idea is that if “A” poisons the testator’s mind against “B”, who would otherwise be a natural beneficiary of the testator’s estate by casting dishonest aspersions on his character, then the Will is liable to be set aside. However, the person making the aspersions must know they are false or not care whether they are true or false.
Evidence of Undue Influence
There are several hurdles that a party alleging undue influence has to overcome:
- There must be positive proof of coercion
- There must exist no other reasonable explanation as to why the deceased made a Will in the terms they did
- All facts and matters relied upon to substantiate an allegation of undue influence must be pleaded in the challengers statement of case.
However, positive/direct evidence of undue influence is rare. By its very nature, undue influence is covert and takes place behind closed doors. In most cases direct evidence does not exist and an inference must be drawn from other proven facts. It is usually necessary to weave a complex tapestry of evidence, but the more the circumstantial evidence is strong and aligned in one direction, the less likely it is that the court will be as exacting in requiring direct evidence of undue influence and for you to prove the precise mechanism by which undue influence was brought to bear.
Evidence important to establishing that a Will has been procured by means of undue influence could include:
- The defendant saw an opportunity and had an opportunity to procure the Will via undue influence.
- They were motivated by previous family history to seize the opportunity and greed.
- They became hugely interested in the testator’s property and financial affairs during their lifetime.
- The testator was dependent upon the defendant.
- The defendant has a domineering character.
- They acted as a gatekeeper to communications with the testator.
- They poisoned the testator’s mind against the challenger.
- The defendant’s character is one of a person who would engage in undue influence.
- There is no other reason that exists to explain the Will.
- The testator was a weak and vulnerable person at the time.
- The will marks a departure from the testator’s previous Will making pattern which benefited the challenger.
- The challenger is one of the testator’s natural beneficiaries.
A challenge to a Will on grounds that it was procured by means of undue influence will involve a detailed investigation into the circumstances surrounding the preparation and execution of a Will.
John Lambe is Head of the firm’s Contentious Trusts and Probate team at Forbes Solicitors