Making a will is generally better than not making a will; you choose who inherits, how much, and when. You can save on inheritance tax and other taxes. You can provide certainty, and you can make it clear what your wishes are about your funeral. But what happens when it goes wrong? When your ‘will’ doesn’t really express your wishes; what then? A will may be open to challenge for a number of different reasons. This article considers what happens when there is evidence that the person who made a will didn’t have ‘free will’ to make it.

• What is undue influence in a will dispute?
• An example of an ‘undue influence’ will case
• Is the law on ‘undue influence’ just about coercion?
• How can I challenge a will on the basis of ‘undue influence’?

What is undue influence in a will dispute?

What must be proved by the person bringing the claim 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 – which is allowed – and coercion, which is not, can be difficult to define. Evidence in these cases is often 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 succeed. None of these arguments should be put unless there is good evidence to support them.

The judgment 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.”

An example of an ‘undue influence’ will case

In the Daily Mail recently, details of an ongoing case were reported where 5 sisters are fighting with their uncle Terry in relation to the estate of their grandfather, Fred Snr. Their grandfather had made a will in 2011 dividing his estate between his 3 children; the sister’s father, Fred Jnr, his brother Terry, and sister Susan. Fred Jnr sadly died before his father, in 2015. The sisters had been assured that their father’s one-third share would pass to them on Fred Snr’s death. However, after his death in 2020, it transpired that he had made a new will in 2018 leaving his £500,000 estate just to Terry and Susan. The 5 sisters were disinherited. The validity of the 2018 will is being challenged by the sisters on the basis that Fred Snr was an ill man who had been bullied by Terry and had felt ‘extreme fear’ of him. Although the article does not confirm that one of the arguments that the sisters rely on is undue influence, it is highly likely that this is a key element of the claim, and it will be interesting to see what the final outcome is.

Is the law on ‘undue influence’ just about coercion?

No! Undue influence in relation to wills is very different from undue influence in relation to lifetime gifts of money or property. If you think someone has been ‘scammed’ out of money or property during their life (whether or not they are still alive), then the rules are not the same, and it’s important to get specialist legal advice about the difference between the two.

How can I challenge a will on the basis of ‘undue influence’?

With care! These cases are complex, and much depends on the circumstances under which the will was made. You need to get a copy of the will file, medical records, and witness statements to allow a solicitor to assess the pros and cons of the case. It’s important to put on a ‘caveat’ at the Probate Registry to prevent a ‘dodgy’ will from being admitted to probate while you investigate.

Sarah Young – Director & Solicitor