When Is Influence ‘Undue’?
There are various methods of challenging the validity of a Will, one of which is to show that undue influence had been exerted on the deceased.
This is by far the hardest method of setting aside a Will and that is reflected by the fact that there has only ever been 4 successful cases determined in the court.
There must have been ‘coercion’ rather than just ‘persuasion’, and that is a concept which most of my lay clients struggle with.
The form of the undue influence can take many forms: an instant act of pressure, intimidation, domination, control, emotional pressure (Walker v Walker (2007)).
The leading case of Killick v Pountney (1999) sets down the 5 part evidential test it requires:
i) The coercer was in a position to exercise influence
ii) The coercer did exercise influence over the deceased
iii) The influence exercised was ‘undue’
iv) The undue influence was exercised in relation to the Will
v) It was by means of the exercise of that undue influence that the Will came to be executed
Simply put, the undue influence must be the only reasonable explanation rather than one of the possible explanations (Ark v Kaur (2010))
As the burden of proof is on the alleging party, the alleged coercer may decide not to actively defend themselves, which is in fact what happened in 3 of 4 successful cases.
Example of when influence was deemed ‘undue’ include:
Schomberg v Taylor (2013)
In 2008 the deceased was grieving for her husband who had died and was herself unwell. It was found that her brother-in-law was in financial difficulties and had persistently telephoned the deceased putting pressure on her to change her Will to his and his wife’s benefit, which the deceased eventually did. The deceased had complained to her stepsons (the beneficiaries of an earlier Will) of the pressure and how she was worn down and reduced to tears by her brother-in-law’s actions. It was held that the brother-in-law had the requisite motivation and there was no obvious reason for the deceased to change her earlier Will to cut out her stepsons.
Schrader v Schrader (2013)
The deceased changed a former Will which had left her estate equally between her sons, to favour one of the brothers over the other. The Defendant gave evidence himself to show much he hated his brother. Evidence was also produced about his abusive and violent character including records of the verbal abuse and threats made after the deceased’s demise. There had been a clear pattern that the deceased had always treated her sons equally and so there was no reason for her to depart from this. The straw that tipped the camel’s back was the draft Will containing the Defendant’s manuscript amendments, contrary to his sworn evidence that he had nothing to do with the preparation of the second Will!
The allegation of undue influence is very serious (akin to fraud) and so should not be made lightly and should only ever be embarked upon if there is sufficient evidence to support the allegations, which can take the form of criminal records, medical/expert evidence, and/or witness evidence from friends and family.