Undue influence & wills: What you need to know

My colleague, Ashleigh Lavender, recently wrote about suspicious wills. In these situations, people often have the same thought, “Something doesn’t feel right.” But when does a suspicion become a legitimate legal challenge?

I want to look in a bit more detail at what you have to do to show that a suspicious will is invalid because of undue influence. I will also touch on a related claim, called “fraudulent calumny”, which I admit sounds like something straight out of Shakespeare!

The basics

A valid will should reflect the testator’s true intentions. In England and Wales, people are generally free to leave their money & property to whoever they choose. That can sometimes feel unfair, but unfairness is not enough on its own to make a will invalid.

Instead, the key question is whether the person was free to make the will without unfair pressure, bullying or manipulation.

What is undue influence?

The leading case of Rea v Rea (2024) quoted from and approved a nineteenth century case of Parfitt v Lawless where the Judge said,

….undue influence….raises the question of coercion, and that only.

So, it’s all about coercion. The question the court will decide is was the person coerced into making a will that they did not want to? Or almost, did they have their arm twisted behind their back?

Put another way, was the will someone else’s decision and not the person who actually made it?

Every case depends on its facts, but undue influence might involve threats, bullying, emotional blackmail or controlling behaviour. Often it may be a pattern of behaviour, especially where the person making the will was isolated, vulnerable or relying heavily on the person said to have influenced them.

What does not count as undue influence?

Court cases about undue influence & wills say that, on its own, persuasion is acceptable and so it is not enough if a friend or relative asks to be included in a will or says they are disappointed if they find out that they are not going to be included.

It is also not enough if the friend or relative explains why they need help or even reminds the person making the will how much they have done for them or how much they mean to them.

In addition, there is no presumption of undue influence just because the person who benefits from the will was a carer for example or if the person making the will was vulnerable or had health problems & disabilities.

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Take Me There

Evidence

Like any other Court Claim, evidence and gathering and preserving that evidence as soon as possible is key. However, good quality evidence is especially important in a claim of undue influence because, where the will appears to be valid otherwise, the burden of proof shifts to the person who makes the allegation. In short, they have to prove on the balance of probabilities that undue influence is the most likely explanation.

Without such evidence, it can be difficult to prove undue influence. Finding enough evidence can be very challenging though, simply because it’s very often the case that undue influence occurs behind closed doors.

The other obvious point is that the person whose will it was is no longer be around to give evidence.

According to an academic paper[1], there are a number of red flags which increase the risk of undue influence. These include:

• Dependency
• Isolation
• Recent bereavement
• Physical & mental health problems & disabilities
• Surprising gifts in the will
• Beneficiary involvement in arranging for the new will to be made

How the will was prepared is very important. For example, who contacted the solicitor? Who attended the meetings? Did the person making the will have the chance to speak to the solicitor alone? Did they explain, in their own words, why they wanted to make those changes?

So, one of the first things we will do with a case where there are concerns about a will is to write to the solicitors or advisers who prepared the will to obtain a copy of their file and ask detailed questions about how and why the Will was made as it was.

Other useful evidence may include medical records, care notes, emails, text messages, letters, social media posts, diary entries and statements from people who saw the person regularly.

Fraudulent calumny

Finally, a few words about fraudulent calumny. This is related to undue influence but it is actually a separate claim, largely because there is no need to show coercion.

Instead of coercing someone to change their will, the wrongdoer deliberately tells lies about another potential beneficiary so that the person making the will decides to leave them less, or nothing at all.

In the leading case of Re-Edwards (2007), the Court said,

The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside….

One other point about fraudulent calumny is that it can only relate to just one part of the will, sot that the rest of it remains valid.

Final thoughts

If you suspect undue influence or have any other concerns about the validity of a will, it is very important to obtain expert legal advice as soon as possible.

If you would like to discuss a potential will dispute, our contentious probate team can assess the circumstances of your case and advise on the most appropriate next steps.

[1] “The wills of older people: risk factors for undue influence” (2009) C Peisah et al