In the context of a Will, suspicions are often raised when the deceased is believed to have acted in a way entirely out of character, such as amending the beneficiaries to their estate or removing loved ones from their Wills entirely, often to the benefit of someone unexpected.
Such occurrences can result in claims of an “undue influence.” This is when a testator is found to have been coerced into changing their Will through threatening behaviour, manipulation or deceitful language designed to alter the testator’s perception of their personal circumstances or the intentions of those around them.
The primary beneficiary under the deceased’s most recent Will is almost always the culprit, but it could just as easily be someone who will receive a significant increase in benefits above what they would have received under a previous Will or through intestacy.
Given that the act itself usually takes place behind closed doors and the person who could give the best evidence is, by the very nature of the claim, dead, direct evidence of undue influence is uncommon, and as such, it can be very difficult to prove. Yet, in one recent case, the court was able to learn more about the relationship between an elderly widow and her nephew thanks to the transcript of secret video footage recorded by the accuser, resulting in their successful challenge to the deceased’s multi-million-pound estate.
An inventor’s legacy
When Julie Harrison died in 2020, she left behind an estate worth more than £2.5 million, owing mostly to her deceased husband’s legacy as one of the inventors behind the parachute components on the Harrier jump jet’s ejector seat.
Julie had amended her Will in 2017 to include a £400,000 bequest to her nephew, Jonathan Greenwood, to the detriment of her daughter Candice Harrison, with whom relations had become increasingly difficult in recent years.
Candice believed that her cousin had “turned her mother against her” as Mrs Harrison’s frailty became perpetuated by dementia, with Mr Greenwood playing on her fears about being placed into a care home in order to persuade her into altering a previous Will dating back to 2012 in his favour.
Her concerns were proven following the installation of covert recording equipment, the audio from which depicted a “campaign of undue influence” had been undertaken by Mr Greenwood, according to High Court Deputy Master Katherine McQuail.
In her ruling, the Deputy Master stated: “The deceased harboured false beliefs that her daughter was taking her money without her authority and planned to sell her home and place her in a low-grade care home,” concluding that Mr. Greenwood had been persistent in his campaign to persuade Julie to leave him money by capitalising on her worries about being removed from her home.
As a result, the 2017 Will was nullified and the 2012 version reinstated, bestowing the majority of the estate to Candice. Mr Greenwood was also ordered to pay £120,000 in legal fees.
Proving ‘Undue Influence’
Situations like that involving the Harrison family frequently arise in instances where one child benefits more than other children in a Will, and those choices appear to not be consistent with what was believed to be the deceased person’s desires prior to their death.
Another potential red flag is when the primary carer, especially for a vulnerable or elderly person, receives a sizable benefit from a bequest. In these circumstances, the person may have frequently shown some amount of control over the affairs of the deceased. For instance, they might have scheduled the deceased’s appointments with legal counsel or Will writers or provided instructions on their behalf.
Unlike lifetime transactions there is no presumption of undue influence and so a person alleging it has to be able to prove actual undue influence. That means showing coercion. It is legitimate to seek to persuade a person that they should benefit you in their will. It has been said that “appeals to ties of affection or pity for future destitution” are legitimate. What is needed is conduct which “overpowers the volition without convincing the judgment”.
In considering whether conduct has amounted to coercion the court can take into account the physical and mental state of the testator, so someone weak due to physical or mental frailty, recent physical or mental trauma or advanced age will likely be overpowered more easily and so undue influence is more easily proved.
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”, Lewison J in Re Edwards (2007)
Physical evidence and documents are generally very persuasive with Judges. This could include:
- Prior Wills that had been properly executed;
- Testimony from a medical or mental health specialist to discuss the victim’s capabilities;
- Testimony from a person who was present when any threats or persuasive comments were made;
- Photography or audio recordings.
Prospective claimants may wish to think about whether there may be alternative grounds for the Court to rule that the deceased was not aware of and did not endorse the terms of the Will in the absence of sufficient evidence to demonstrate undue influence in the context of a Will. Proving undue influence can be very difficult and a claim for want of knowledge and approval is likely to have a greater chance of success than a claim of ‘undue influence’ if there were questionable circumstances around how the Will was created.
Regardless of how challenging it is to determine such wrongdoing, the act of exerting ‘undue influence’ is illegal and the courts do take a very dim view of it.
If you have concerns that ‘undue influence’ has played a role in the enactment of a loved one’s Will, and would like to establish whether you have grounds to make a claim, please contact us for an impartial, confidential consultation.
