Undue influence in the context of making a will occurs where the person making their will is unable to act of their own free will and volition due to the involvement of another in the process, usually a beneficiary.
The term has long been established in case law as overpowering a person’s wishes and coercion. In Edwards v Edwards [2007 the court held: “it is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.”
The amount of pressure or influence required to overbear a testator’s wishes will vary from person to person, depending on personality, age, health etc. As such, it is important to acknowledge the behaviours that do not amount to undue influence. These include appealing to the affections of the testator by:
- pulling on their heart strings, eg: “I am your only child and have done so much for you over all of these years”
- heavy persuasion, eg: “If I don’t receive any inheritance from you, I will not be able to help my child and your grandchild to buy their first property like you always wanted”
- badgering until they give in, eg: “As I have said before, I need some inheritance to pay off debts, please can you leave me something to help me out”
- befriending or spoiling an elderly testator with a view to be included in their will
Deliberately concealing information that would show someone in a less favourable light or anyone else in a more favourable light would also not amount to undue influence.
Undue influence is very difficult to prove as usually it goes on behind closed doors and there is no independent witness to it, so no evidence of it. However, the involvement of a beneficiary particularly where the person making the will is vulnerable, may support a claim for lack of knowledge and approval where the evidence is not enough to establish undue influence necessarily.