What Is Undue Influence?

INTRODUCTION

In the context of will writing, a Will must not be made as a result of "undue influence," which is legal speak for "coercion."

You may challenge the validity of a Will if you have reason to believe that the Testator has been coerced into making it against their wishes in a way that benefits the coercer.

In the context of this article, the "coercer" reverts to forms of bullying, manipulation, extortion, or abuse, depending on the situation or context.

"Undue influence" was originally defined in the case of Hall v Hall in 1868 as the "pressure of whatever character....if so exercised, to overpower a person's wishes."

In a court of law, it must be proven that considerable pressure must have been exerted before there is any chance of a finding of undue influence.

WHAT INITIAL RED FLAGS SHOULD YOU LOOK OUT FOR?

Before diving into the specifics of undue influence, it's essential to understand the initial red flags that might have aroused your suspicion.

Are there any telltale signs that something might be amiss?

Below, we've laid out a few circumstances that should immediately alert you that something isn't quite right:

• The deceased individual was considered vulnerable or frail at the time the Will was drafted, creating an opportunity for potential forced coercion.
• The deceased individual became dependent on a new beneficiary around the time the Will was changed.
• You consider any sudden change to the Will entirely out of character for the Testator.
• The newly drafted Will significantly deviates from the Testator's previously stated wishes.
• A Benefeciary not included in the previous version of the Will suddenly appears in the new one.
• An existing Beneficiary is now set to inherit a substantially larger amount than previously stipulated.

WHAT ARE THE CONCRETE DIFFERENCES?

Evidence is a crucial component in claims of this nature. Once you've detected something wrong, it's essential to discern what does and what doesn't constitute undue influence. This will help you build your case. However, this determination isn't always so clear-cut.

Remember, the assessment of the level of influence or pressure exerted on someone will vary from one person to another. Therefore, you'll need to consider several factors in your evaluation, including health, age, and even personality traits.

First of all, what behaviours DO NOT constitute undue influence (coercion)?

Some of the following behaviours might not strictly fall into the category of undue influence:

• Pulling on the Testator's heartstrings, e.g. "I'm your youngest child and have looked after you all these years when the others fled the nest."
• Knowingly hiding certain information that would positively or negatively influence the Testator's view of somebody.
• Making friends with an elderly Testator in the hope they can be included in the Will.
• Overindulging or pampering an elderly Testator in the hope that they can be included in the Will.
• Pestering or harassing an elderly Testator until they give in, e.g. "I keep telling you, I need some inheritance to invest in my company. Otherwise, the other investors won't invest."
• Heavy persuasion, e.g., "If you don't include me in your Will, I won't be able to afford sending your grandchildren to that private school you always wanted."

WHAT BEHAVIOURS DO CONSTITUTE UNDUE INFLUENCE (COERCION)?

The courts are clear that it's permissible for an individual to exert certain lawful pressures on a Testator as long as they are not coerced into something they do not wish to do.

Undue influence can take many forms, including, but not limited to:

• Physical coercion involving violence or confinement.
• Verbal pressure or bullying, especially when directed at a Testator who might be deemed weak or vulnerable.
• Any form of pressure applied with the express intent of influencing a Testator to capitulate and conform to the influencer's viewpoint, just to get some peace.

Example:

The 2007 case of Edwards v Edwards provides a good example.

In this illustration, the deceased individual had three sons, two of whom she had a good relationship with (Sons A and B) and one with whom she had a difficult relationship (Son C).

Just before she passed away, the Testator made a new Will with instructions that her Sons A and B should be disinherited and her estate should be left to Son C. The Testator had also accused Son A of theft.

The court finally declared the Will to be invalid on the basis that Son C had exerted undue influence on the Testator. There had been "no other reasonable explanation" for the deceased's behaviour other than that Son C deliberately poisoned her mind against Sons A and B.

WHAT IF I’M NOT ABLE TO PROVE UNDUE INFLUENCE?

If you suspect suspicious circumstances but don't think you have sufficient evidence to claim undue influence, it may still be possible to challenge the Will on other grounds. For instance:

• The Will may not have been drafted correctly.
• The Will might be lacking a signature.
• There's an absence of a witness to the Will.
• The person who drafted the Will may not have been of sound mind.
• The person who drafted the Will might lack the necessary capacity, knowledge, or approval.

If any of these scenarios apply, feel free to consult other related articles in our library for a quick overview of related topics. Alternatively, you are welcome to reach out to us for clarification. We will gladly connect you with one of our trusted partners if we cannot assist.

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