Undue Influence in Wills
Undue influence in a Will is when someone is coerced into making a Will (to include or remove certain things) by an individual who wishes to benefit from it, resulting in a Will that is not a reflection of the Will maker’s true wishes.
If you wish to contest a Will on the grounds of undue influence, our specialist team can help. Our Will disputes solicitors advise clients across the UK from our offices in Bristol and the surrounding area, including Bedminster, Bishopston, Bristol city centre, Kingswood and Thornbury.
We pride ourselves on providing straightforward advice while ensuring you and your loved one’s wishes are prioritised.
What is undue influence in a Will?
Undue influence in a Will is where a person, for their own benefit and gain, pressurises the Testator (the person making the Will) into either making a Will (and/or including or omitting certain elements from the Will by overpowering their free judgement. This pressure could be physical, mental, or both.
Actual undue influence
Undue influence in respect of a Will (which differs from undue influence in lifetime transactions, sometimes called ‘presumed undue influence’) is often referred to as ‘actual undue influence’. The party that alleges it must prove undue influence occurred, whether through direct or circumstantial evidence.
A claim for undue influence in respect of a Will may focus on the behaviour of the influencer, rather than primarily on their relationship with the Testator. However, the physical and mental health of the Testator will be an essential component of an undue influence claim.
Unfortunately, vulnerable people such as the elderly or those with reduced mental capacity may be most at risk of undue influence, and often at the hands of someone they trust and care for or who supposedly cares for them, such as a family member, friend or carer. It is often the case that the Testator is subjected to a continued period of coercive conduct.
Indicators of undue influence
Undue influence in a Will can be difficult to prove, but some of the most common examples include:
- The Testator is subjected to physical harm, including controlling and violent behaviour.
- The Testator is bullied and verbally abused.
- The Testator is told they will or will continue to be, isolated from friends and family members if they don’t comply.
There are further ‘red flags’ that coincide with these changes, including:
- The changes made are substantially different from a previous Will or expressed wish, such as to benefit someone not previously included.
- The Testator was dependent on that person when the changes were made, i.e. a carer.
- The Testator was in poor physical or mental health when the change was made.
- The changes were made or procured in the presence of the influencing party (beyond only facilitating arrangements).
- The changes were made without the Testator obtaining proper and independent advice.
Proving undue influence in a Will can be challenging, as such conduct often happens behind closed doors. There is a significant difference between persuasion or advice and coercion, and determining what amounts to undue influence may include characteristics of behaviour to which a Testator is specifically and individually vulnerable.
Undue influence FAQs
For an undue influence claim to be successful, it must be proven to the satisfaction of the court that the Testator was coerced into making the changes to their testamentary wishes. It is important to seek legal advice from a specialist contentious probate solicitor if you think your loved one was the victim of undue influence. Our experts will listen to what has happened and advise you on the next steps.
If your solicitor thinks that the Testator could have been subject to coercion, and if it is not possible to settle the dispute in another way, they will present your case to the court. When looking at your claim, the court will consider a range of factors, including:
- The Testator’s physical and mental health.
- How independent the Testator was at the time of the changes.
- The Testator’s relationship with the individual in question at the time the changes were made.
- The conduct of the individual in question and the time over which that conduct took place.
- The significance of the change e.g. did the share of the estate change from a third to two-thirds?
- Previous Wills and how they compare to the updated version.
Proving undue influence can be complex and every case is different. To speak to a member of our team, get in touch.
It is important to not only examine the disputed Will (how it came to be prepared and executed, what advice the Testator received, etc.) but also all of the surrounding circumstances; for example, the relationship the Testator had with the various interested parties, the period over which these relationships existed, what the Testator’s prior wishes had been etc.
Vulnerable adults such as the elderly or those with physical or mental disabilities are most vulnerable to undue influence or coercion when making a Will. Often, people who depend on others for care and support or who may even be socially isolated and not in frequent contact with friends or family, are most exposed.
This can mean that such people do not share changes with anyone else or even realise what has happened. Unfortunately, the impact of undue influence is often only realised when it’s too late; after the Testator has passed away, leaving Executors and Beneficiaries in an extremely difficult and stressful situation.
Fraudulent Calumny differs greatly from undue influence but often includes the same facts. It is often referred to as the ‘poisoning of the mind’ and occurs when knowingly or recklessly false statements are made by the ‘poisoner’ to the Testator to the former’s benefit at the expense of another.
Consequently, whilst the Testator may be convinced they are doing the right thing (unlike in undue influence cases) the changes to the Will are made primarily as the result of the false representations. When this happens, if proven, it can be a ground for contesting or challenging that Will.
Contact our Will disputes solicitors
If you believe a loved one was subject to undue influence and you want to contest the Will, we may be able to help. Call our expert contentious probate solicitors on 0117 325 2929 or fill out our online enquiry form.