How to Contest a Will: Understanding Undue Influence

By: Sangita Manek- partner in the Dispute Resolution team at Blaser Mills Law

How to contest a Will you believe your relative was pressured into making

In England and Wales, you have the right to leave your estate to whoever you choose, but sometimes people have different opinions of what the deceased’s wishes were, and this can lead to disagreements.

Situations where your relative was pressured into making their Will in a particular way are known as ‘undue influence’ and can be especially distressing. As the pressurising often takes place behind closed doors, it can also be very difficult to prove.

If you believe someone has forced or coerced your relative to make or change a Will, it is best to start the process of contesting the Will as soon as you can, but here are some things to consider before you do so.

What constitutes undue influence?

While the courts have made it clear that there is nothing inherently wrong with influence by itself, as individuals are influenced by various factors when deciding what to include in their Will, the law does not allow undue influence.

Undue influence is considered to be a form of coercion. In the context of Wills, coercion is present when a testator [a person making a Will] is forced by another to make provision within his or her Will, which they otherwise would not have made were they acting according to their own free will. This can be through intimidation of a victim by the use of psychological pressure, physical force, or threats.

What amounts to coercion will vary from case to case but, for a case to be considered undue influence, the claimant must be able to show that the actions moved from merely showing persuasion to showing coercion. For that reason, undue influence claims are particularly factually sensitive.

There are several signs which may give cause for concern that someone making a Will has been under undue influence. These include unexpected or last-minute changes to a Will, wishes that are different to those expressed before, adding someone new to the Will or substantially increasing the share of someone named in the Will, particularly when the person making the Will was dependant on the beneficiary at the time of writing the Will, and where the person making the Will was ill, confused or likely to be susceptible to coercion.

How can undue influence be proven?

If you believe a Will has been made under circumstances of undue influence, you may challenge the Will by applying to the Court to have it declared invalid. If you are successful, the deceased’s estate will be distributed in line with their previous Will or, if there is no prior Will, the rules of intestacy.

Due to the serious nature of the allegations involved in contesting a Will on the basis of undue influence, you must be able to provide strong evidence to back up your claim and it will need to show that there is no other reasonable explanation for the Will being the way it is.

It is important to note that the burden of proof in a claim alleging undue influence in relation to a Will remains always on the potential claimant and there is no basis to transfer any evidential burden to the potential defendant.

Finding direct evidence to support a claim can be extremely difficult, given that the very nature of undue influence means the coercion will have been done in private and will not be in written correspondence. In addition, the fact that the primary witness – the deceased – is not able to assist the court, makes matters even more challenging. However, it is perfectly proper for undue influence to be established by inference from circumstantial evidence.

Determining whether there has been undue influence depends on the specific circumstances of each case. However, the following factors are recognised as being relevant to the assessment of whether there has been any undue influence:

The physical and mental strength of the testator – The Will of a weak and ill person may be more easily overborne that that of a hale and hearty one. [Edwards v Edwards at WTLR 1387].
The length of time over which such pressure could have, or was, placed – A “drip drip” approach may be highly effective in sapping the will. [Edwards v Edwards at WTLR 1387].
Whether a professional, and in particular a legal professional, is involved -Evidence that a testator had received proper and adequate independent advice will diminish the possibility of a finding of undue By contrast the involvement of the major beneficiary may invite heightened scrutiny.
An assessment of the motive of the testator. Is the Will otherwise explicable? Is there a breakdown in the relationship between family members? Did the testator rely on the potential defendant and/or were they vulnerable to their suggestions? How does the Will under challenge compare to the testator’s previous Wills or expressions of their testamentary wishes?

If strong evidence of undue influence is not available, it might still be possible to challenge the Will on other grounds, for example ‘lack of knowledge and approval’ [whereby the testator was not aware of the contents of the Will] and ‘lack of testamentary capacity’ [whereby the testator lacked understanding of what they were doing and the implications when writing their Will].

Conclusion

Contesting a will is complicated, so it is important to seek legal advice at the earliest opportunity to explore your options for dealing with the dispute.

A specialist Wills and probate lawyer will be able to review the facts of your situation and advise you whether an undue influence claim is the best course of action, or if an alternative claim may have higher prospects for success.

This will help you achieve the right outcome as quickly as possible, while keeping conflict to a minimum.

How to contest a Will you believe your relative was pressuring into making

Jessica Weisman-Pitts

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