Undue Influence in Wills
Unfortunately, we regularly act in cases when wills are changed very close to the Deceased’s death, prompting suspicion that the undue influence may have been exerted on the Deceased.
Establishing undue influence is not easy, with the onus always upon the Claimant to establish that the will was made under undue influence.
Examples of undue influence include :-
- Threats to the Deceased
- Withdrawal of support or help
Obviously each case always has to be judged on its own merits, with the number of successful cases typically very limited on account of the high legal threshold required to succeed with a case.
Proving Undue Influence
When challenging a will on grounds of undue influence you must show that the person making the will was coerced into doing so not of their own volition but instead as a result of the actions of a third party. So what does this mean in practice and what types of case arise ?
Very often undue influence cases arise when the person making the will, is ill, frail, has capacity issues or often very dependant upon a carer or family member for care or support. Evidence maybe shown to be verbal, in writing or as the Judge in the case of Edwards -v- Edwards stated a drip drip approach maybe seen over a prolonged period which impacts upon the physical and mental strength of the Testator to make a balanced decision.
When considering undue influence a helpful checklist of factors was provided by the Court in the case of Schrader -v- Schrader, which outlined the following factors a Court should consider when considering Undue Influence :-
The vulnerability of the person making the will
- The dependency on others
- whether a law firm or known solicitor is involved in the process of making the will
- whether there is a legitimate reason for the will being changed
- the personality of others in the will making process eg. is there a dominant or forceful character ?
- previous will making patterns
Examples of undue influence
Some examples of when undue influence has been proven :-
- a case involving an illiterate man, who was persuaded to gift half of his home, all the correspondence with advice by the solicitor had been shown to have been read out to the donor by the recipient of the gift
- physical threats and mental pressure being made against a testator
- when there is a evidence of threats to the testator making the will
- when there is evidence of trust and confidence and an unusually large lifetime gift made prior to death or in a will