When a loved one passes and the terms of their will are unexpected, it can prompt family members to be suspicious as to whether they were coerced into making a will that does not reflect their true testamentary intentions. It is true that a will is only valid if it is made freely and voluntarily, and if coercion or undue influence affected the making of the will then it can be set aside by the Court. However, challenging the validity of a will on the basis of undue influence is not as simple as showing that the testator was convinced to make a will on certain terms.
What is Undue Influence?
Undue influence occurs when a testator (a will-maker) is coerced into writing a will which is contrary to their wishes. Coercion in this context does not mean mere influence or pressure. There must be evidence which affirmatively establishes that by virtue of coercion, the testator’s will was overborne and the gift(s) bequeathed in the will were gifted contrary to the testator’s wishes. This sets the bar for proving undue influence very high.
How Do I Prove Undue Influence?
In order to establish undue influence, you must prove:
The will disposes of property in a way that wouldn’t be normally expected or that appears suspicious. For instance, if immediate family members were overlooked without any explanation;
The testator was reliant on or trusted the influencer;
The testator was susceptible to undue influence. Perhaps due to illness or frailty; and
The influencer took advantage of the testator’s reliance on them and benefitted under the new will.
The first of these criteria is relatively straightforward and will be shown by the will itself, however, the other three are more difficult because the deceased is not available to explain their reasoning or motive. In adjudicating these matters, the Court must rely on the evidence of witnesses who knew the testator (for example doctors, family, friends, or advisers) and their knowledge of the relationship between the testator and the influencer. Consequently, a claim of undue influence is commonly pursued along with a claim of a lack of testamentary capacity (for more information on testamentary capacity see here), as where a person has lost capacity they will be more susceptible to being influenced.
The key question is whether the will of the testator was overpowered by the conduct of the influencer, which (and this must be reiterated) is a high bar to overcome. In many matters, there will be suspicious circumstances which by themselves do not prove that undue influence has occurred. For this reason, it is always best to seek experienced legal advice before attempting to challenge a will on this ground. There may be other avenues of contesting a suspicious will which are open to you if you believe you have been unfairly overlooked.
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