DATE PUBLISHED: 09 Nov 2016 LAST UPDATED: 24 May 2022

Challenging a Will: Undue influence & Wills

We are often asked about undue influence in relation to Wills and what must be shown to prove the case. At the outset, it is important to note that undue influence claims in relation to Wills are notoriously difficult to prove as the person who would be able to assist in identifying whether undue influence has arisen has died. Unlike lifetime gifts, there are also no presumptions which arise and the burden is on the person alleging undue influence to prove it.

To demonstrate undue influence, it is necessary to show that there has been a coercive influence over a person writing a Will which causes them to write their Will in a particular way. Influence or persuasion in itself will not necessarily amount to undue influence. The court has accepted that when people are making a Will, they will be influenced by many factors when deciding who to include. However, if the influence amounts to coercion or fraud, then it will be deemed to be “undue influence”. A useful summary of the position is that the “testator may be led but not driven” (as held by the Court in Hall v Hall).

When deciding whether undue influence was exerted, the court will consider factors such as the testator’s capacity, the testator’s dependency on the person exerting the influence, whether other people were involved in the testator’s life and whether a solicitor was involved in the Will making process. The evidence must be fully considered to establish whether the influence which may have been exerted would be considered coercion or mere persuasion and therefore the circumstances of the case must be carefully considered to ascertain whether such a claim is viable.

Sometimes, it may transpire that a person has made false representations about the character of a person to the testator for the purpose of influencing the testator to exclude them from a Will or revoke a legacy. If this occurs, the claim of fraudulent calumny exists. As with undue influence, the burden is on the person making the claim to show that false representations have been made which were either known to be false by the person making them or with no care as to whether the representations are true or false. However, like undue influence, this is often a very difficult claim to prove.

If you have concerns about undue influence in a person’s lifetime, then it may necessary to report this to the Court of Protection. We have a number of specialists within our Wills, Trusts & Probate team who can assist in this regard. If you have concerns about undue influence relating to the Will of a person who has died, we have a team of experts in contentious probate matters who regularly advise on such claims.

If you wish to discuss any of the issues arising from this blog, please feel free to contact Victoria at victoria.riddleston@ellisjones.co.uk or 01202 057768

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