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Disputed Wills are, sadly, becoming an increasingly common fact of life. Beneficiaries who may be disappointed with what they receive under someone's Will, or who believe a Will doesn't reflect someone's true wishes, are frequently asserting their ability to challenge Wills, on grounds ranging from lack of knowledge and understanding, to fraud and undue influence.
Undue influence is a particularly tricky area, as it sets out the boundary between what is an acceptable level of influence over the wishes of others, and what is an unacceptable level of such influence.
The Law Commission has proposed various reforms to the law on undue influence, and their potential impact will not be discussed here. Pending the introduction of such reforms, the law on undue influence in the context of Wills is as follows.
What is undue influence?
Essentially, undue influence occurs when someone pressures someone else – often a vulnerable individual - into acting or doing something in a way which does not reflect their real wishes or intentions. We all influence the decision-making of our loved ones at every stage of our lives, including when it comes to making a Will. So at what point does that influence become unacceptable, or 'undue'?
Undue influence in Wills arises where it is proved that someone caused another person to make a Will through exerting improper pressure over that person. This covers situations where there are obvious acts of coercion, including emotional manipulation, threats of harm, and extortion.
In essence, undue influence is pressure which overpowers someone's volition, without convincing their judgment, with the result that they make or change their Will in a way which they would not have done but for the undue influence. Persuading someone to benefit an individual in their Will is legitimate, as the testator's free volition is still intact. But when the testator's volition is overpowered such that they are no longer exercising their own free will, undue influence (otherwise known as coercion) is then in play.
The consequences of undue influence are serious: where it is proved, a court can find that a Will is invalid.
How to safeguard against undue influence
When making a Will, a solicitor should meet a testator alone so that they can make a clear judgment as to whether there are potential signs of undue influence. This might be obvious from the testator's behaviour – for example, they might be reticent to speak in front of another family member who accompanies them to a meeting. It can also require more subtle forms of enquiry to work out whether undue influence is evident. For example, a client might be able to state their instructions for their Will, but be unable to explain why they have those instructions. Or, a client might suddenly and unexpectedly want to change their Will to benefit someone new, without any convincing justification.
Where any significant and unexplained changes like these arise, or where any other red flags are apparent, a good solicitor will ask searching but sensitive questions to try to get to the heart of a client's real instructions. In addition, good file notes documenting a client's reasons for their wishes should be kept, in case they are needed as evidence in the future. Undue influence can be notoriously difficult to prove, as it often takes place behind closed doors, so keeping good contemporaneous evidence of a testator's wishes is crucial. In addition, where mental capacity might be doubtful, a medical assessment of capacity should be obtained.
It might be that initially suspicious circumstances have an entirely innocent explanation. However, where it becomes clear that undue influence is present, a solicitor should generally cease to act in preparing a testator's Will.
How to stop a Will being challenged
The law of undue influence helps to ensure that testators are protected from nefarious pressure when making Wills.
The flip side is that testators whose Wills are made entirely of their own free volition will want to minimise the risk of spurious undue influence claims from unscrupulous individuals.
Testators who wish to make their Wills less vulnerable to challenge on the basis of undue influence should consider taking the following steps:
1. Use a qualified professional to prepare a Will. A good solicitor will ensure that a Will is properly executed and reflects a testator's intentions. DIY Wills are far more susceptible to challenge.
2. If a testator wants to make unusual or unexpected dispositions in their Will, they should explain their reasoning, and that reasoning should be documented (possibly by a letter of wishes).
3. Wills should be regularly reviewed to ensure they continue to meet a testator's wishes.
4. If appropriate, a testator should consider letting their family members know the contents of their Will while they are alive, to avoid unexpected surprises (which can increase the risk of disputes).
5. Testators should choose trustworthy executors and trustees, and potentially appoint professional executors where their estate is complex or likely to be subject to dispute.
It is crucial that testators seek good legal advice so that undue influence can be spotted at an early stage, and relevant enquiries can be made. That way, a client's real wishes are more likely to be given effect, and expensive future disputes can be mitigated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
