Undue Influence: Can I Contest a Will if I Was Left Out?

We often view a Will as a testator’s final message to their loved ones. However, what happens when that ‘message’ does not appear to reflect the person you knew, their wishes, the promises made to you throughout their lifetime and/or you are concerned that someone may have coerced them into making changes to their Will? 

In these situations, a claim of undue influence provides a mechanism for a concerned loved one to challenge a Will that appears to have been unfairly influenced by another person.

This is the second insight in our “Can I contest a Will if I was left out” series, focusing on undue influence. To see the first insight in our new series discussing claims made under the Inheritance (Provisions for Family and Dependants) Act 1975, please see here.

What is Undue Influence?

Undue Influence refers to circumstances where an individual is coerced or manipulated into preparing (or making changes to) a Will, with the net effect being such that their freedom of choice is no longer their own, and the Will no longer reflects their true wishes.

Undue Influence is to be distinguished from mere persuasion and instead must be pressure that causes a testator to “succumb for the sake of a quiet life.”

In all cases, the critical question is whether, in making the Will, the testator has acted as a free agent. If the Will appears to reflect the desires of a third party, rather than the genuine intentions of the deceased, it may be declared invalid.

When might Undue Influence arise?

Commonly, a party raises a concern of undue influence when they worry that one relative or party has exerted pressure on the deceased to change their Will before they die. This pressure can take many forms including physical force, such as blackmail or threats, or mental pressure.

By its nature, such influence is often exerted clandestinely and over a period of time and arises out of a relationship between two persons where one has acquired over another a measure of influence.

What is required to prove undue influence?

The short answer is that it depends. It depends on the nature of the alleged undue influence, the physical and mental strength of the testator, the personality of the parties and their relationship.

There is no automatic presumption of undue influence in Will drafting, instead the burden of proof lies on the person claiming undue influence was present.

In practice, proving undue influence is notoriously difficult. This is because it goes on “behind closed doors” and often relies on circumstantial evidence - given the primary witness (the deceased) is unable to assist the court. Moreover, due to the very serious nature of the allegation, and the court’s general reluctance to declare a Will invalid unless there is sufficiently strong evidence that undue influence occurred, this presents a high standard of proof.

What are the common indicators that Undue Influence may have occurred?

Common “red flags” where a Will is claimed to be tainted by undue influence may include:

1. A period of isolation preceding the testator’s death – often influenced by the wrongdoer, who restricts the Deceased access to friends, family or professional advisors.
2. Unexplained changes made to the Deceased’s Will before they died, which significantly change the testator’s wishes, often deviating from earlier Wills prepared by the Deceased.
3. A new and unexpected beneficiary, such as a recent acquaintance or caregiver, is given a concerningly large portion of the estate.
4. The influencer taking control over the testator’s Will drafting, such as arranging their appointment for a new Will to be prepared and being present during meetings with their solicitor.

Whilst none of these factors are determinative on their own, and indeed case law indicates there is no “slam-dunk” for proving an undue influence claim, considered together, they may support an inference of undue influence.

Conclusion

A Will should be a testament to a person's life and legacy. However, if that legacy has been "hijacked" by the manipulation or coercion of another, the law provides a path to set the record straight.

Whilst the standard of proof is high for proving undue influence, we have the legal expertise and experience to help you evaluate any potential claim you may have.

Our contentious probate team is accredited by the Association of Contentious Trusts and Probate Specialists (ACTAPS), and we are a top firm for client satisfaction.

If you have concerns that a loved one’s Will may have been tainted by undue influence, contact our specialist dispute resolution team today.

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