It can be difficult to successfully contest the contents of a Will, as the emphasis is on the claimant to prove their case in Court, rather than the defendant protecting their position.
In matters where ‘Undue Influence’ is mooted as grounds, it can be particularly challenging, as the boundary between coercion and advice can be somewhat subjective. But in an era where even the savviest individual can fall foul to the exploitation of fraudsters, it is important to understand exactly what the Court looks for when ‘Undue Influence’ is claimed in a probate contest.
What is ‘Undue Influence’?
It is not unusual for family members or friends to offer unsolicited advice, particularly when it comes to ageing relatives. However, this on its own cannot usually be classed as undue influence for the purpose of contesting a Will.
Undue influence is essentially the act of pressurising a person to such a degree that they no longer feel they can make choices for themselves, be that by through threatening behaviour, physical or emotional bullying, or more subtle, manipulative means. Such actions often disrupt the testator’s desire to provide for loved ones in their Will and instead positions the manipulator as the primary beneficiary.
If the testator is mentally and physically capable, they can decide whether to heed someone else’s opinion, no matter how forcibly that has been put across. However, if the individual is believed to be in any way vulnerable due to physical frailty or cognitive decline, the Court will generally concede that there is a higher likelihood that they were susceptible to undue influence.
As a general rule, a “testator may be led, but not driven” with regards to their Will. Unfortunately, some individuals will target vulnerable people intentionally with the goal of manipulating them into changing their Wills for their own personal gain. This kind of action amounts to not only undue influence, but also coercion, fraud, or elder abuse. However, identifying whether this is the case isn’t always so clear-cut..
For example, a family member or ‘friend’ might choose to move in with an elderly relative to offer care or support during a period of illness. Whilst it might all appear very amenable on the surface, over time, the elderly person could start to become estranged from their children or other loved ones for no tangible reason, become isolated or begin to act out of character. Though such behavioural changes aren’t unusual when health declines in older age, it could raise suspicions of undue influence.
How to prove undue influence?
To prove undue influence, there must be clear evidence of coercion rather than mere persuasion. The testator must have felt that their freedom of choice was restricted in some way. If they feel they still retained their freedom with regard to making important decisions, then it will only be seen as persuasion in the eyes of the law, and it will not be enough for the Court to intervene.
However, if there is a belief that undue influence was a factor then the matter can be raised in Court. If proven, the judge may be prompted to rule that the Will is subsequently invalid.
All evidence must be fully considered, along with the specific circumstances of the case, to ascertain whether a claim is viable. In their ruling, a judge will look for a claimant to prove any of the following:
- The estate has been bequeathed in an unexpected manner, perhaps not including provisions for close family members in favour of other parties without an obvious explanation.
- The testator’s capacity, or dependency on the person exerting the influence, especially if that person subsequently becomes a primary benefactor.
- Illness, fear of abandonment or frailty has made the testator more susceptible to undue influence
- The ‘influencer’ has taken advantage of the testator by substituting an original Will for one of their choosing which specifically benefits them.
- Whether a solicitor was involved in the Will making process, or who was present during any meetings to discuss such matters.
Evidence from people who knew the testator well will be required to prove undue influence. This could include medical professionals or health care providers, carers, lawyers, or even family members. They will be asked to testify about the relationship between the deceased and the person being alleged to have been exerting undue influence, citing any unusual behaviours or suspicious activities.
Occasionally, it may transpire that the ‘influencer’ has purposefully painted another individual in a bad light, disparaging their character to the testator in order to manipulate the testator into removing them from their Will.
In this situation, the claim of fraudulent calumny exists. As with undue influence, the burden remains on the claimant to prove that false representations have been made about them, or that personal information was spread maliciously irrespective of whether that information is true or false.
How can you prevent ‘Undue Influence’?
Lawyers and Will writers have a responsibility to spot signs of extreme control from a third party that may amount to undue influence. For example, the STEP Code for Will Preparation in England & Wales states that a Will writer must refuse to act if asked to deal with a third party but are unable to confirm that the testator is ‘free from coercion, undue influence, and has testamentary capacity’.
It is always best to take instructions from a testator without potential beneficiaries being present. However, if they insist on having someone present, it should be noted as to what has been advised and who was present during the meetings in case any claims of undue influence are raised at a later date.
Often, an honest conversation with the testator and their lawyer will be the most effective and inexpensive way of preventing undue influence. Having a frank discussion as to how estate planning can impact future generations of the family before the testator becomes too vulnerable or unwell can be enough to ensure that no uncharacteristic actions are taken at a later date, certainly not without them being flagged up by the Will writer involved.
If making rational decisions is already an issue for a loved one, for the sake of their wellbeing, a a power of attorney could be put in place, or if that is not possible then a Deputyship could be sought through the Court. This will see a trusted party being appointed, and given the responsibility for, amongst other things, ensuring a loved one’s final wishes are respected without the threat of undue influence.
Case Study: Persuasion is not considered to be ‘undue influence’ in Will disputes
Two of the six grounds on which a challenge to a Will can be made – lack of knowledge and approval and undue influence – featured in the recent case of Coles v Reynolds & Anor [2020] EWHC 2151 (Ch).
A dispute arose between two sisters over their mother’s last Will, made in May 2012, which named one of them (the Defendant) as sole beneficiary and executor. This document replaced a previous Will under the terms of which her estate was to be split equally between her two daughters.
The excluded daughter, the Claimant, bought a claim on the following grounds:
- The Defendant had unduly influenced their mother into making the disputed Will. Their mother did not have knowledge of, nor approve of its contents. Therefore, an order should be made revoking the Grant of Probate made to the Defendant.
- A further claim was brought on behalf of the estate to set aside an assignment of one-half share of the beneficial interest in their mother’s property to the Defendant on the basis that it was procured by undue influence and for an account of rent received by her sister.
The Court held that the deceased had knowledge and approval of her Will and was not unduly influenced in setting out her final wishes.
Knowledge and approval
As the Claimant was neither challenging lack of testamentary capacity nor that it was executed incorrectly, the burden lay with the Defendant to demonstrate that their mother knew and approved of the Will’s contents.
Although the 2012 Will was a significant departure from the previous one, the Court did not accept the Claimant’s argument that the Defendant’s involvement in the Will preparation was suspicious.
A solicitor’s note provided as evidence said: “She [the Deceased] was adamant she did not want [the Claimant] to inherit as she had done nothing for her mother and no longer wants to see her, she said her daughter [the Defendant] does everything for her”. The Court found that this clearly explained the change of wishes that subsequently occurred. The mother had also independently signed a statement around the time of making her Will which confirmed this rationale.
The solicitor’s attendance notes provided further confirmation that the deceased knew exactly what she was doing, with knowledge and approval of the contents of her Will. This part of the claim was duly dismissed.
Undue influence
The Claimant contended that their mother was heavily reliant on the Defendant who subsequently placed undue influence on her when her Will was made, taking advantage of her frailty and vulnerable state. She also argued that the deceased had originally intended to make a pecuniary legacy to her grandchildren, but the Defendant had persuaded their mother against doing this.
The Court dismissed the Claimant’s arguments on the basis that there had been no concerns regarding the deceased’s mental capacity and that merely being frail did not preclude a person from making a valid Will. The Court noted that whilst the deceased did rely on the Defendant, she was not her sole source of support.
Their mother had wished to leave the Claimant’s children a legacy in her Will and had discussed this intention with her solicitor. The Defendant reminded her that the only way to achieve this would be to sell her house, which she did not wish to do. Thus, despite the Court accepting that the Defendant persuaded the deceased not to go ahead with a legacy, it held that persuasion did not equate to undue influence.
The Court concluded that the Claimant’s allegation of undue influence was not substantiated. In light of the breakdown in her relationship with the Claimant, the mother’s decision to change her Will was understandable.
Having been unsuccessful on the first part of her claim, the Claimant was not entitled to pursue a derivative claim on behalf of the deceased’s estate.
Regardless of the findings in this case, if you are at all suspicious that someone is being subjected to undue influence, and that their instructions do not match their true wishes, then you must act.
If you wish to discuss any concerns you might have arising from this blog, please feel free to contact our contentious probate team for support.
