If your loved one was unduly influenced by someone when making their will, it could be invalid. But what is ‘undue influence’ and how does it differ from mere persuasion?
Undue influence claims are particularly fact-sensitive and can be difficult to prove, not least because such influence typically takes place in private when no one else is watching. However, there are several determining factors that can help shed light, as Anjali Narshi, associate solicitor and contentious probate specialist in the Dispute Resolution team at Lodders, explains.
‘Undue influence’: a definition
Everyone has the freedom to leave their estate as they wish, regardless of how unfair their decisions may seem. However, undue influence occurs when one person exerts such pressure over another that their free will is broken and they end up leaving their estate in accordance with the other person’s wishes, instead of their own – usually to keep the peace.
Case example: Mrs Hill
As a fictitious example, let us imagine that a client, whom we’ll name Mrs Hill, has sought legal advice after discovering her father has left his entire £5.5 million estate to her sister, whom we’ll name Julie, following his death.
Mrs Hill had always been close to her father but found that contact with him tapered off in recent years after he moved in with Julie, following the sudden death of their mother. Grieving and feeling alone, their father had agreed to move in with Julie since she lived closer to him than Mrs Hill.
Since then, her father called her less and less, and whenever Mrs Hill called to speak to him, more often than not, Julie told her that he was asleep or unable to get to the phone. He’d had many friends, but they had all confirmed to Mrs Hill that they had not seen him in at least two years prior to his death. Mrs Hill had also obtained some medical notes which showed a steady decline in her father’s mental and physical health and showed that he was a vulnerable adult.
Mrs. Hill’s father’s earlier will, made six years ago, shared the estate equally between the two sisters. However, the more recent will made approximately a year ago left his entire estate to Julie and nothing to Mrs Hill, indicating a notable change.
Persuasion or undue influence: what to take into account
Family and friends are free to make suggestions and try and persuade a testator as to how they should leave their estate. Persuasion itself, although not ideal, will not amount to undue influence unless it can be proved the will no longer reflects the testator’s own true wishes, but instead reflects those of the person exerting the influence. In other words, the persuasion has gone too far and resulted in coercion – which is not allowed.
In Mrs Hill’s case, the circumstances surrounding the change in her father’s will would undoubtedly raise suspicion. The following factors would be relevant in determining whether undue influence had taken place:
1. The testator’s physical and mental strength
A weak and/or ill person may be more easily overborne than that of, what the court has described as, a “hale and hearty one.” Here, it might be argued that Mrs Hill’s father was vulnerable to influence since he was grieving the loss of his wife, and his health was declining.
2. The length of time in which pressure has been placed on the testator
A “drip drip” approach over an extended length of time may be highly effective in sapping a person’s free will. Here, Mrs Hill’s father changed his will after he moved in with Julie and at a time when he rarely spoke to anyone else.
3. The motive of the defendant
The court will ask whether the will makes sense, given all the circumstances of the case. For instance, was there a breakdown in the relationship between family members? Was the person who made the will reliant upon anyone and potentially vulnerable to suggestions? How does the will compare to the person’s previous wills or expressions of their testamentary wishes? Here, it might be argued that Mr Hill’s father had been isolated from other family members and friends. Also, he had not fallen out with Mrs Hill so there was no reasonable explanation for the significant change to his will.
Making a case
Taking these points into account, there would be a strong case to show that Mrs Hill’s father might have been unduly influenced. It could be argued that Julie Mrs Hill’s sister applied pressure in the final few years after her father moved in with her and that given his weakened state and his reliance on her, he would have been more vulnerable and susceptible to this pressure. The stark difference between his previous will and the new one would also support this argument.
However, it should be remembered that obtaining evidence of undue influence might be difficult since he hardly had any contact with family and friends in the year leading up to his death. We would want to carry out further investigations and see who prepared the will, for example.
Evidence that the person who made the will had received independent advice might diminish the possibility of a finding of undue influence. A lawyer should always take steps to confirm there is no undue influence, for example by seeing the client on their own, away from family members, to check that their wishes for their will are their own.
Need more advice on contesting a will?
There are many reasons why you may want to contest a will. From believing the testator was unduly influenced, to suspecting the will has been forged.
If you need to challenge a will, get in touch with our disputed wills & estate specialists to see how we can help. You’ll receive an initial no-obligation consultation where we discuss the matter with you. Equally, if you are defending a claim against a will, we can assist.
For advice regarding disputed wills and estates, get in touch: E: [email protected], T: 01789 206137.
Lodders is a premier law firm in Stratford upon Avon, Cheltenham, Henley in Arden, and Birmingham. Founded more 240 years ago, the firm offers expert legal advice across a range of legal services including private client, commercial law, real estate, and family law.
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This is a submitted article