March 2008

Undue Influence when making a new Will

The issue of possible undue influence when making a new Will is often raised after the person has died. It is often connected with consideration of making a claim against the deceased’s Estate.

What then is undue influence? In short it is mental coercion – a pressure of whatever kind to make a Will in particular terms. Threats, if carried to a degree in which the free play of the Will Maker’s (“testator’s”) judgement, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his or her will must be the offspring of his volition and not the record of someone else’s. One should note, however, that not all influences are unlawful.

The legal test for undue influence was summarised by the High Court where the Judge found:

  • But for extraneous pressures from others, the Will Maker has signed a Will contrary to his or her wishes;
  • Persuasion which has left the final choice to the Will Maker is not undue influence as the court will look at the Will Maker’s own wishes with suspicion where there is evidence of pressure.
  • Where the wishes have not been overborne the Court must uphold the Will, as the Will Maker wanted in that form.
  • The onus of proof lies upon the proponent of undue influence. Normally cases turn upon the strength of circumstantial evidence. Such matters as illness, pain and suffering, physical weakness and mental deterioration falling short of testamentary capacity are relevant. So too is dependency upon others in legal, business, social, medical and/or domestic matters.

Points to note:

1) Usually the person alleging undue influence must prove it;
2) Where the person propounding the Will is the principal beneficiary the onus shifts, particularly if that person prepared it.
3) The issue of undue influence is one of fact to be determined at the time the Will was made;
4) Undue influence is more readily found when the testator is of weak mental capacity or state of health;

Each case is to be determined on its own facts. One should view with special care any powerful need, obligation or vulnerability on the part of the deceased which others might be in a position to exploit. For this reason, amongst others, we are extremely reluctant to accept instructions for a new Will, from a client, if other persons are present.