Recent years have seen a marked increase in clients wishing to overturn the Will of a recently deceased relative or friend, often on the basis that the person who made the Will (the “Testator”) was subject to some malign influence from a third party so that they acted against their true will.
“Undue Influence” is indeed a legal ground for setting aside a Will as invalid. However, the most realistic advice when it comes to undue influence claims is that they are very difficult to prove.
There are sometimes suspicious circumstances surrounding a Testator’s last Will but it does not follow that undue influence can be established. It is not the case that undue influence can be presumed even if there are questionable dealings and shady third parties involved. Undue influence must always be proved and this creates a high burden on the persons alleging it.
Although the Courts have never actually defined precisely what conduct establishes actual undue influence, it is certain that nothing short of coercion will do. The third party has to bring pressure which overpowers the Testator’s will without convincing his judgment. In other words, if the Testator could express the situation in words, he would say “This is not my wish but I must do it”.
One of the obvious difficulties in such cases is that it is difficult to find witnesses to the undue influence. The Testator is of course dead, and by the very nature of his dealings, the perpetrator of the undue influence will have taken care to have kept independent third parties away.
The fact that only two successful Court cases have been reported on the basis of undue influence relating to Wills in the last 10 years, is an indication of how difficult it is to prove. The facts of a recent case which did succeed are as follows:
Mrs X had previously made a Will benefiting her two surviving sons, “A” and “B”, equally. Before she died she made a further Will making A her sole beneficiary. A lived with her at her house. He was a heavy drinker and she was often afraid of him. By contrast she had a very good relationship with B. She suffered a fall and was admitted to hospital. During her stay she asked B to get A to leave her house. Following a visit from A’s friends she suddenly changed her mind about this. She also said she no longer wished to go home but she wished to go into a nursing home. On the day following her admission to the nursing home, A visited her and then reported that she was unhappy and wanted to leave. A took her home against medical advice and deterred B from visiting. A solicitor was called to the house and Mrs X told the solicitor she wanted to make a new Will leaving everything to A. A Will was duly drafted in those terms.
The Court found that A was aggressive and verbally abusive to Mrs X who was frail, vulnerable and frightened of him. It was found that A deliberately poisoned Mrs X’s mind against B with the effect of causing her free will to be overborne. In changing her Will she was simply doing as she was told, not as she wished.
The point to note is that it was not enough for B to prove that the facts were consistent with a scenario of undue influence. He had to prove that the facts were inconsistent with any other scenario; in other words, that there was no other possible reason for Mrs X’s change of heart than the undue influence of A.
All of this may seem to paint a gloomy picture for persons wishing to challenge a Will. However, Wills may be challenged on a number of other legal bases, including:
- The Testator lacks the required testamentary capacity (for example this may apply to certain cases of Alzheimer’s disease).
- The Will fails to comply with the required formalities (for example it is not properly signed or witnessed).
Even if a Will is perfectly valid, certain parties may still be entitled to have provision made to them from the Testator’s estate even if the Will does not allow for this. Most commonly such claims are brought by the Testator’s unmarried partner or children, but other parties may also have a valid claim.
The above is by no means an exhaustive list of possible legal challenges which may be brought.
For more information contact Jane MacLeod.