A will is a private document, but it is common for people to discuss their will with family members, and to seek their opinions and their help. There is nothing wrong with family members giving their opinions about what a person’s will should say, and who they should leave their estate to, as long as the person making the will is still able to exercise their judgement freely.
Undue influence arises when somebody’s judgement is overtaken, so that they can no longer make their own decisions freely. Undue influence is much stronger than persuasion, and involves an element of coercion. A will can be influenced, but it is invalid if it was produced as a result of undue influence.
The burden of proof is on the person alleging undue influence to show that undue influence took place. This presents a problem for claimants who are alleging undue influence, as undue influence usually takes place behind closed doors, and there is often no direct evidence of it having taken place.
In the case of Schrader v Schrader the court recognised this difficulty and made a finding of undue influence based on circumstantial evidence, despite there being no direct evidence of coercion. The court was able to infer undue influence from a number of suspicious circumstances, including the son’s involvement in the preparation of the will, the fact that the son failed to engage solicitors who his mother had used previously and the fact that the son did not disclose the existence of the will until steps were taken to prove an earlier will. The court found that there was no reason, other than the son’s undue influence, why the Deceased would have wanted to change her will.
In the case of Rhea v Rhea the High Court took a similar approach, and inferred undue influence from a wide range of factors, including the Deceased’s frailty and dependence on her daughter, her daughter’s forceful personality, and her daughter’s involvement in the arrangements for the creation of the will. However, the decision of the High Court in Rhea v Rhea has recently been overturned by the Court by Appeal emphasising how difficult it is to succeed in challenging a will on the grounds of undue influence.
Although the Court of Appeal accepted that undue influence can be proved without direct evidence of coercion, it emphasised that this is a very high bar for claimants to reach. The Court of Appeal described undue influence as “inherently improbable”. In most cases, facts which could point towards undue influence will be more likely to show simple persuasion (which will not invalidate a will). In overturning the finding of undue influence the Court of Appeal also gave significant weight to the fact that a solicitor and GP had been involved when the will in question was made.
Will challenges based on undue influence are complex, and it is important to take specialist advice as early as possible. If you require any assistance, a member of our private wealth disputes team will be happy to discuss matters with you.