One of our Professional Negligence Solicitors, Chris Thomson, discusses undue influence, what it is and how it could affect you.
A Last Will and Testament (a ‘Will’) can be challenged in Court following the death of its creator (the ‘Testator’) on the basis that, at the time of the Will’s creation, the Testator was under undue influence. This is one of the grounds to challenge a Will.
A Will may be deemed invalid by the Court if it can be demonstrated that, at the time of its creation, the Testator was under undue influence and so the Will itself did not correspond with the Testator’s true wishes. This blog concentrates on what undue influence is, and how it could affect you.
What will constitute undue influence?
Undue influence is difficult to prove, and it is for the person(s) asserting that there was undue influence to prove it on the facts. The Court will look at the circumstances surrounding the Testator at the time they made the Will to ascertain what their true intentions were and whether they were under any coercion or control by another. The Court in the case of Edwards v Edwards [2007] EWHC 1119 (Ch) stated that ‘mere persuasion’ is not enough to constitute undue influence, and that there must be some coercion or fraud involved which influences the Testator’s decisions.
The Court will consider various factors to determine whether there was any undue influence on the facts, including by looking at the Testator’s frame of mind at the time they made the Will, how long the alleged influence went on for (for example, was pressure placed on the Testator over a number of years?), and the Court will also assess whether there were any significant changes in the Testator’s life at the time of making their Will, including whether there were any breakdowns in relationships at the time. The Court will also pay attention to whether there was a legal representative involved in drafting the Will, because if the Testator received adequate legal advice as to its provisions, this may reduce the chance of proving that they were under undue influence at the time.
Who can bring a claim to challenge a Will?
Any spouse, cohabitee, child, person who is mentioned in the Will in question, or one which had been made earlier; may bring a claim to challenge the Will on various grounds, of which undue influence is one. Other grounds to challenge a Will include improper execution of the Will (for example, if it was not properly witnessed when it was signed), fraud, revocation of the Will, forfeiture, or on the ground that the Testator lacked testamentary capacity when creating the Will (please see our separate blog on testamentary capacity and what this means). The person bringing the claim to challenge a Will is responsible for proving the grounds they allege on the balance of probabilities.
If the Court rules that the Will is invalid, the Testator’s estate will pass in one of two ways:
- Based on an earlier Will they created when they were not under undue influence; or
- Under the Intestacy Rules. These rules list a number of relatives who are ranked and will receive under the estate in a specific order. The Testator has no control over who receives what in this case, as the estate will pass in the prescribed order of the Intestacy Rules.
Get in touch with our specialist team
Jordans Solicitors’ Wills and Probate Disputes’ team are here to help with your potential claim. Just contact them at any one of our five branches in Dewsbury, Horsforth, Penistone, Selby and Wakefield, on 033 0300 1103, and they will help guide you further.
