Challenging a Will on the grounds of Undue Influence

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Challenging a Will on the basis that it is null and void because of undue influence is very difficult to prove. The first step to take when you believe that you may have grounds for challenging a Will on this ground is to obtain a copy of the Will file from the firm of solicitors who prepared the Will and to seek legal advice.

Undue influence is effectively a situation in which one party’s decision making has been undermined by the influence of another. Where his/her judgement has been abandoned in areas relevant to the transaction in question and advantage has been taken of that by the main beneficiary under the Will.

Simply stated, undue influence is when an individual who is stronger or more powerful gets a weaker individual to do something that the weaker person would not have done otherwise. The stronger person uses various techniques or manipulations over time to gain power and compliance. They may isolate the weaker person, promote dependency, or induce fear and distrust of others. Undue influence in a legal sense is quite distinct from issues concerning mental capacity not least because there are cognitive tests for mental capacity.

In Edwards v Edwards [2003] All ER (D) 79 the court held that in testamentary dispositions there was no presumption of undue influence as it will be a question of fact. The Court went on to say that the burden of proof is very high for a civil case such that

  • It is not enough to prove that the facts are consistent with the concept of undue influence what must be shown is that the facts are  inconsistent with any other concept;
  • Influence means that which is exercised by coercion or fraud;
  • Coercion is pressure that overpowers the will of the testator without changing the testators actual mind;
  • The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary;
  • The question for a court is not whether the Will was fair but whether in making the dispositions the testator has acted as a free agent.

In the case of Edwards v Edwards the Will was challenged on the basis of undue influence as there was clear evidence that the deceased’s son had poisoned the deceased’s mind against the beneficiaries of the original will by making untruthful accusations against them causing the deceased to change her Will in his favour.

Examples of where the court has held that there was undue influence were in the following cases:

In Re Howell [1955] OWN 85 where the Will was prepared by the parish priest leaving nearly all the testator’s estate to the parish church this was held to be as a result of undue influence.

In Williams v Williams [2003] All ER (D) 403 the doner was disabled, could not read or write or cope on his own. His brother persuaded him to give up one half of his house to him and his wife and they moved in to look after him. The correspondence between the donee and his solicitor could only have been read by the brother or his wife and the Court found that there was undue influence.

In Hammond v Osborn [2002] EWCA there was no evidence that the son had deliberately sought to take advantage of the deceased but the transaction was highly advantageous to him and had no advantage at all for the deceased and could not otherwise be explained. The court found that there had been undue influence.

Should you have a query regarding a Will please contact Joseph Quinn on 01392 248858


This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.


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