Undue influence is one of the most serious grounds on which a will can be challenged. It occurs where someone has pressured or coerced a person into making or changing a will in a way that does not reflect their genuine wishes. Proving undue influence is not easy, but where the facts support a claim, it can result in the will being declared invalid.
Undue influence in the law of wills means coercion. The testator's will was overborne so that they did what the influencer wanted rather than what they themselves wanted. It is distinct from persuasion, encouragement, or even persistent pressure, which does not amount to undue influence unless it reaches the level of coercion. The courts have described it as pressure that overpowers the volition of the testator without convincing their judgment.
Lack of testamentary capacity, which arises where the testator did not have the mental ability to make a valid will, and undue influence are separate grounds of challenge. They can be raised together. A person can have capacity in the legal sense but still have their will overborne by another person's pressure. Equally, a person with significantly reduced capacity may be more susceptible to undue influence.
Undue influence cannot be presumed in the law of wills as it can in other legal contexts such as equity. It must be proved by the person challenging the will. Relevant evidence includes evidence of isolation of the testator from other family members or friends, evidence of dependence on the influencer for care or financial management, the timing of changes to the will in relation to the influencer's involvement in the testator's life, evidence of threats or pressure, and evidence that the provisions of the will are inconsistent with the testator's previously expressed wishes.
The person challenging the will on grounds of undue influence must prove it on the balance of probabilities. Given the inherent difficulty of proving what happened in private between the testator and the alleged influencer, often after the testator has died, circumstantial evidence plays an important role. The court draws inferences from the surrounding circumstances.
Undue influence in a will requires proof of coercion that overrode the testator's genuine wishes. It must be proved by the challenger on the balance of probabilities and cannot be presumed. Evidence of isolation, dependence, and changes inconsistent with previous wishes is relevant. A probate litigation barrister can assess the strength of the evidence and advise on whether a challenge is viable.
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