Undue influence is when excessive pressure or coercion is used to persuade someone to change their will.
Undue influence is often argued in will disputes but is rarely successful. This is simply because there is a fine line between offering someone advice about their will and using coercion to obtain a benefit.
However, when the testator's (the person who signed the will) autonomy is questioned sufficiently, the will can be invalidated and the distribution of the estate altered.
The nature of undue influence
If a will is contested on the grounds of undue influence, the court must decide whether someone has overstepped the mark of persuasion or advice and their actions constitute manipulation or coercion. Ultimately, has the testator's free will been compromised?
The law talks about the pressure "overwhelming the testator's own wishes without necessarily completely changing their mind".
Undue influence might be suspected when changes to a will are:
- Unexpected or made when death is near
- Detrimental to the testator or their estate
- Different to wishes previously expressed
If the testator is mentally or physically capable, then they can decide whether or not to heed someone's advice, but changes such as these to a will might be concerning if:
- The person benefitting from the new will wasn't included in the original will
- The testator was vulnerable due to physical frailty or cognitive decline
- The testator was dependent on the benefactor when the changes were made.
An example of undue influence
Undue influence often involves family members or someone in a position of trust, such as a carer.
For example, a common claim of undue influence involves elderly parents who have been cared for predominantly by one of their children. There are examples where that person has used their position as primary caregiver to manipulate their parent, sometimes by claiming their siblings do not care, ultimately leading to a change in the will in their favour.
In the worst cases, the testator's child might screen calls or limit visitors to create isolation, control the situation, and exert their power.
Dependency is common in undue influence cases, whereby the testator feels they are reliant on the person attempting to manipulate the situation for their own benefit.
Distinguishing undue influence from persuasion
Undue influence is a very difficult ground on which to contest a will due to the challenge of distinguishing between legitimate persuasion and coercion. Encouraging someone to change their will does not constitute undue influence – it needs to be shown that the testator's free will was completely oppressed.
In the landmark case of Gill v Woodall (2010) Mrs Gill had severe agoraphobia. The court ruled that her domineering husband forced her to leave the house, causing panic and anxiety, and coerced her into changing her will to his own benefit.
The line between persuasion and undue influence can often be blurry and complex. Courts consider various factors when determining whether influence crosses the line into undue influence.
These include:
- The testator's characteristics, such as age, health and mental capacity
- The nature and duration of the influence
- The relationship dynamics between the testator and the alleged influencer
- The timing of will changes
- The reasonableness of the will's provisions given the testator's circumstances and relationships
Proving undue influence
Proving undue influence can be very difficult, particularly as the necessary coercion usually happens behind closed doors, and evidence is often scarce. A combination of direct and circumstantial evidence is generally required to build a case.
Direct evidence can include witness testimonies from people who observed the influencer's behaviour or the testator's state of mind. Correspondence such as letters, emails or text messages showing attempts to influence or isolate the testator can also be crucial. In rare cases, audio or video recordings may provide direct evidence of the influencer's actions or the testator's expressions of being pressured.
More commonly, cases rely heavily on circumstantial evidence. Medical records can be used to give insight into the testator's physical and mental health including any conditions that might have made them more susceptible to influence, such as dementia. Financial records might reveal irregular transactions that suggest undue influence from someone else, particularly if the testator's financial management had been sound in the years before the will was changed.
Legal documents, including previous wills and notes from solicitors involved in will preparation, can offer valuable context. Social and family history, particularly changes in relationships or social interactions, can paint a picture of the testator's circumstances. Expert opinions, such as psychological evaluations of the testator's susceptibility to influence, may also play a role in building a case.
Taking action against suspected undue influence
Someone's true wishes must be honoured after their death. While undue influence cases are complex and difficult to prove, it is not impossible.
Seeking the advice of a solicitor specialising in contentious probate is the crucial first step. They will be able to assess the strength of the case and your chances of success and guide you through the process.
After initial advice, a formal investigation will begin. This involves obtaining copies of the contested will and any previous versions, requesting relevant medical and financial documents, and identifying potential witnesses. A caveat can be entered with the Probate Registry to prevent probate from being granted while the matter is under investigation.
Some undue influence cases are settled out of court. Mediation is less confrontational and is usually cheaper and quicker than litigation, so it is often used. If mediation fails, the probate pre-action protocol begins, which involves an exchange of information in an attempt to reach an out-of-course settlement.
If all else fails, the final option is court proceedings before a judge.
Preventing undue influence
There are several steps people can take to protect against undue influence claims after your death, including:
- Regular legal reviews of the will with an independent solicitor to ensure that your wishes are accurately reflected and documented
- Obtaining medical assessments of your mental capacity at the time of will creation or significant changes
- Ensuring that you have independent legal representation, separate from beneficiaries
- Detailed documentation of discussions about the will and estate planning, including the rationale for any unusual requests or changes
- Encouraging open family communication about estate plans
- Choosing impartial witnesses for will signing and maintaining financial transparency
- If you are vulnerable, professional oversight such as appointing a professional executor or engaging a care manager can help.
