Undue influence – some frequently asked questions

Contesting a will on the grounds of undue influence can be very hard to prove because the best witness is no longer alive to provide details. We are often asked about challenging a will on the grounds of undue influence, so we cover some of the key points below.

What is undue influence?

Undue influence can be actual or presumed. Actual undue influence is where an individual has taken deliberate steps to persuade a donor to make specific gifts or legacies. Presumed undue influence is based around a lack of independent advice or support for the person making their will (the testator).

Undue influence has been defined as pressure (of any character) which has been exercised to overcome a person’s wish. However, that power must have resulted in the testator’s will having been made and/or changed.

What sort of situations might make me suspect undue influence?

Normally, people are alerted to the possibility of undue influence when they discover that unexpected or surprising gifts have been made by a testator. For example, someone receives a much larger gift than expected, or has been included in a will when they haven’t been included in previous wills prepared by the testator.

In addition, where positions of care are involved, this might give rise to a suspicion of undue influence. For example, if the testator was heavily reliant upon someone at the time they changed their will, it is possible that they felt more vulnerable to persuasion by that person.

Is there a presumption of undue influence?

No – it is for the person seeking to contest a will to establish that undue influence occurred and this is a high threshold to meet. Case law has set out criteria which will be considered when seeking to prove undue influence; these include, but are not limited to:

• influence having been exercised by coercion – the testator’s own judgment was overborne
• the testator did not act as a free agent when making their will
• there is no other hypothesis that explains the making of the will
• the mental and physical state of the testator at the time they made their will.

If you would like advice on challenging a will on the basis of undue influence, then we will be happy to help.