Contesting a will: Understanding undue influence

In the 2019 Court of Appeal case of Rea v Rea, a claim of undue influence was made after the deceased had changed her will, leaving her entire estate to one of her four children, rather than dividing it equally among them as in the original 1986 will. The claimant argued that undue influence had been exerted by the beneficiary. However, the court found that the evidence did not sufficiently support this claim, ultimately upholding the 2015 will. This case highlights how difficult it can be to prove undue influence in will disputes, especially when the circumstances surrounding the will’s creation are unclear.

If you have been left out of a loved one’s will in favour of another family member, you might assume that your family member influenced your loved one into making the will.

One common scenario that often raises concerns about undue influence is when a surviving parent, who may have had a close relationship with a disinherited sibling, leaves all or a significant majority of their estate to one child, who may have only reappeared in the final years of their parent’s life.

Older people are generally more vulnerable and dependent on their younger relatives, meaning they can be weak-willed in the face of pressure. They are also generally more trusting of their younger relatives, which can make them more suggestible. It is, therefore, not difficult to imagine that younger relatives may choose to take advantage of these traits for their own financial gain, which can lead to wills which heavily benefit those relatives at the expense of others.

Signs of undue influence

Recognising potential concerns about undue influence or financial abuse can be challenging. Signs to look for can include:

• Sudden and late changes to a will shortly before a deceased’s death.
  
   
• Unusual withdrawals or transfers from the deceased’s bank account.
  
   
• The introduction of unexpected beneficiaries to a will.
  
   
• A beneficiary’s involvement in the will-making process.
  
   
• Witnesses to the will who are closely related to a beneficiary and unfamiliar to the deceased.

Can a will be challenged on the basis of undue influence?

In these circumstances, it might be possible to set aside the will on the basis of undue influence. Influence or persuasion itself is not unacceptable. However, the court will set aside a will if the influence or persuasion is “undue.” For influence to be undue, it must amount to coercion or fraud. Coercion is defined as pressure which overpowers the free will and judgement of the testator without convincing the testator’s judgement; pressure which causes the testator to give in for the sake of a quiet life might amount to coercion.

Factors considered by the court

The court will take into account the following factors when considering whether coercion might amount to coercion:

• The physical and mental strength of the testator. The will of a weak and ill person may be more easily overcome than that of someone in perfect health.
  
   
• The length of time over which the pressure was placed. If pressure was little and often over a long period of time, this might amount to coercion.
  
   
• Whether a professional was involved in the preparation of the will. If the testator had proper legal advice, this would make it harder to prove undue influence.
  
   
• The testator’s motives behind the will. If the will is otherwise irrational, this might increase the possibility of foul play.

Steps to take if you suspect undue influence

If you suspect your loved one might be a victim of undue influence or financial abuse, it is easier to take action whilst your relative is still alive. You can speak to your loved one about your concerns and find out if they are truly happy with the decisions they are making. If they tell you they are being pressured, you may wish to advise them that they should make a new will in accordance with their own wishes. You may also wish to advise them that they can make a Lasting Power of Attorney to give you authority to manage their finances, which would ensure that their assets are protected from abuse. If your loved one has lost capacity, an application to the Court of Protection may be required.

If you find out about the coercion after your relative has died, you will need to pursue a Probate claim. You may also wish to pursue a claim to set aside any suspicious lifetime gifts to the perpetrator.

Undue influence cases will often require scrutiny of what happened at the time the will was made, and very rarely do people have direct evidence of what happened, as it will almost always occur in secret. The court will allow claimants to rely on circumstantial evidence, although such evidence must point to the conclusion that there was coercion. If any other conclusion can be reached, or if the will can otherwise be explained, the court will not set aside the will.

Seeking legal advice

Proving undue influence can be very difficult, and if your case is not properly presented, you could be at risk of paying your opponent’s costs. It is, therefore, essential to seek specialist legal advice to fully understand your position and the potential claims available to you.

Our experts are available to guide you through the legal process with clarity and professionalism. If you suspect undue influence or require advice on contesting a will, we can provide a thorough assessment of your legal position and the best course of action available to you.