Wills and undue influence - what can be done?

The loss of a loved one is hard enough but if you discover that your loved one had been put under great pressure and unduly influenced into making their last Will, this can become intolerable.

What is the legal position if a Will has been made as a result of “undue influence”? When does persuasion become unlawful?

I will address some of these issues below.

What is a valid Will?

Before delving into undue influence, it is important to understand what makes a Will valid. It must be:

1. in writing;
2. made by someone over the age of 18 who is of sound mind;
3. made voluntarily, without pressure from another person;
4. signed by the person making the will (the testator) in the presence of two independent witnesses; and
5. signed by the witnesses, in the presence of each other and the testator.

If any of the above are breached, the Will could be declared invalid.

In this blog I will be looking at the 3^rd requirement, that the Will be made without pressure.

What is “undue influence”?

Undue influence is more than mere persuasion. Instead, it occurs when someone is coerced or manipulated into making a Will which does not reflect their own true wishes, and instead reflects the wishes of another person. Often the person making the Will becomes so worn down by the pressure, that they will make the changes suggested by the influencer simply for an ‘easy life’, even though it is not their true wish. Effectively the testator loses their own free will.

A simple suggestion or advice from a family member or friend does not automatically amount to undue influence, provided any changes made the testator reflect their own wishes. But care does need to be taken, and you should ask the question “Is this how X would have wanted their assets to pass?”. If the answer is yes, then there is unlikely to be a finding of undue influence. If the answer is no, then you may want to investigate further.

The burden of proof

Proving undue influence can be difficult. The evidential burden falls to the person making the allegation of undue influence, but since the pressure usually takes place behind closed doors, and the dispute only arises when the testator is no longer alive to give their version of events, it can be hard to collate the requisite evidence.

The key point to remember is that you need to prove the Will does not reflect the deceased’s true wishes, and they wouldn’t have made the Will on the terms they did, had it not been for the actions of the influencer.   

Tell-tale signs

Although not the be all and end all, there are some common signs of undue influence that you can look out for:

1. Sudden changes in the Will – especially if the testator’s Will had deviated from previous Wills without any explanation or apparent reason.
2. Wills made in haste, without the benefit of any legal advice.
3. Isolation from family and friends, with the testator being dependent on the influencer.
4. The testator being vulnerable at the time of executing their Will; for example they were elderly and frail or suffering from an illness which makes them susceptible to influence.

When to seek advice

Challenging a will is complex and comes at a very emotional time – often it can be hard to see the wood for the trees. It is sensible to seek advice from a specialist who can assess the situation from a neutral viewpoint and talk to you about your options.

If you have any queries in relation to the issues raised in this blog, or contentious probate more generally, please contact Roanna Cooling, litigation specialist at Hughes Paddison Solicitors, at rco@hughes-paddison.co.uk or on 01242 574244.