02 January 2024

Can a Will be challenged if someone has been forced or coerced into making it?

Woman signing Will under pressure

We frequently receive enquiries centred around someone being improperly influenced into making a Will in certain terms, usually to benefit the “influencer.”

If you think that a family member or friend has been unduly influenced or placed under duress when preparing a Will, you may have grounds to challenge the validity of the Will.

What is undue influence?

Undue influence is when another person uses manipulation, coercion, or pressure to influence a person into giving them a benefit in their Will, which they otherwise wouldn’t have done.

Coercion can take many forms including physical violence, verbal abuse, and threatening behaviour, or even simply repeatedly raising the issue of gifts when a person is at their most vulnerable.

What amounts to undue influence?

As there are so many different ways undue influence can occur, which are often very nuanced, it can be difficult to expressly state what exactly amounts to undue influence.

Here are some examples of what may amount to undue influence.

Roger and his carer

Roger is involved in a significant accident and as a result, he is no longer able to look after himself. Roger employs a carer, Rosie, to help him with his day-to-day activities and care needs.

Roger has four children. Prior to his accident, Roger had made a Will sharing his estate between his children.

Once Rosie became involved in Roger’s life,  she began to isolate Roger from his children, stopping the children from seeing and contacting their father. Rosie told Roger that she was the only person who cared for him and that his children no longer wanted to see him.

Eventually, Rosie persuaded Roger to change his Will to benefit her and disinherit his children.  Rosie purchased a DIY Will pack online.

When the Will pack arrived, Roger had changed his mind. He didn’t want to change the terms of his Will. Roger raised his concerns with Rosie and she told him if he did not write a Will that left everything to her, she would not care for him anymore. Given his vulnerability, Roger reluctantly signed the new Will.

Roger’s children may have a claim that his new Will is invalid based on undue influence.

Dana and her LPA

Dana has Lasting Power of Attorney for both finance and health in relation to her father Mick. Mick has recently transferred his property to Dana. Dana told her siblings that it was a gift because she is the favourite daughter. Dana’s siblings now allege that the gift was procured by undue influence.

This scenario would warrant further investigation into whether the gift was procured by undue influence. To prove undue influence in a lifetime gift, it will be necessary to show:

  • there was actual undue influence by the defendant (through improper pressure or coercion); and

  • that Mick placed trust and confidence in his financial affairs to Dana and the transactions call for an explanation.

In this case, as Dana has Lasting Power of Attorney over her father’s finances and the reason why the property was transferred may raise questions, it would be up to Dana to prove that the transaction was free from influence. One way this could have been proved was if Mick got independent advice in relation to the transaction.

Bella and her nephews

Bella’s original Will left her estate to her stepsons. However, two years before her death, she changed her Will in favour of her nephews with only small gifts to the stepsons.

During the two years prior to her death, Bella was extremely vulnerable as she was struggling with grief following the sudden death of her husband. Her brother (the nephew’s father) would persistently telephone her about changing her Will. These calls reduced Bella to tears and caused her to suffer from anxiety. Eventually, Bella gave in and changed her Will so that the calls would stop.

This could potentially amount to undue influence and is based on the case of Schomberg v Taylor.

How do you prove someone has been unduly influenced?

Claims for undue influence are some of the most complex legal claims and can be difficult to prove. To succeed, it is necessary to show there has been coercion rather than simply persuasion.  

The starting point is to take a full detail of the background information and then decide what further investigative steps may be needed. It may be necessary to obtain a copy of the Will file and medical records. It may also be necessary to obtain witness statements.

If you are concerned about undue influence in regard to a loved one’s Will, get in touch with our Wills, estates, tax and trusts team for expert advice.

Need help?

Contact Katherine to discuss this further.

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