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It’s a Fake Will; Undue Influence and Wills

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A challenge to the validity of a will is often accompanied by a deep sense of moral outrage. That was certainly true in the recent case of Coles v Reynolds where Teresa Coles sued her sister, Heather Reynolds over their late mother’s Will made in May 2012. In that Will, the mother left her estate entirely to Heather, overturning her will made in 2002 which had left everything equally between the two sisters.

Teresa was convinced that Heather had unduly influenced her elderly, frail mother to change her Will. Although the estate was small – it was valued at £106,000 – the case went to trial in the High Court in July 2020.

Feelings will obviously run very high in cases like this. But the judge can only be guided by the evidence – not emotion or suspicion. The evidence did not support Teresa’s claim and she lost the case.

The law on undue influence in relation to wills is different to the law on undue influence in relation to ‘gifts’ given during someone’s lifetime (also called inter vivos transactions).  Put simply, it is much harder to prove undue influence in relation to a will than it is in relation to a lifetime gift.

What must be proved by the person bringing the claim to say that a will is not valid is, in effect, coercion. That is, ‘pressure that has overpowered the freedom of action of the testator without having convinced the will of the testator’. The line between persuasion and coercion can be difficult to define. Evidence may be circumstantial rather than direct and obvious. The allegation of undue influence in relation to wills is often run alongside others; usually ‘lack of knowledge and approval’ and ‘lack of capacity’, in the hope that at least one of the arguments will ‘stick’. But none of these arguments should be put unless there is good evidence to support it.

The judgement of Lord Justice Mummery in the case of Hawes v Burgess in 2013 in the Court of Appeal is a good reminder that the law in England and Wales is strict: –

“People can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed.  The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death”.

 That’s not to say that undue influence cases are not winnable. The case of Schrader v Schrader  (also decided in 2013), is a good example. But the son who unduly influenced his mother in that case was very clearly an aggressive bully and so it was not one that in any way ‘opened the floodgates’.

If you are thinking of bringing a will dispute involving undue influence, it’s vital that you put emotion to one side as much as you are able to, and gather and assess the relevant evidence as quickly as possible. This way, a strong claim can be settled out of court and a weak one disposed of before the emotional and financial costs spiral out of control. Please visit our website for practical guidance about how to contest a will.

If you require legal help or advice, please get in touch on our freephone 0800 8 60 62 65 or fill in our online enquiry form.

Sarah Young

Sarah Young Director – Litigation




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