Undue influence is one of the possible grounds to challenge the validity of a will, and the suspicion of it often lies behind a clients’ desire to challenge.
However, given that the nature of undue influence happens behind closed doors and the main witness is deceased, the evidence is rarely there to prove it, and so there are very few successful cases.
Further, the burden of proof is beyond reasonable doubt and, whilst for lifetime gifts there is a presumption of undue influence, the same does not apply in the context of wills. Therefore, quite often, challenges to wills are advanced on the basis of a lack of knowledge and approval, rather than undue influence.
Three successful undue influence cases in the last decade are those of Schrader v Shrader [2013], Schomberg v Taylor [2013] and Re Chin [2019].
Schrader v Schrader
In Schrader v Schrader, the deceased’s original will divided her estate equally between her two sons Nick and Bill, but her last will left her house (which was the estate’s most significant asset) solely to Nick.
The judge found that the deceased was vulnerable and reliant on Nick for care, the will made when she was 96 and just two years prior to her death; that Nick had been instrumental in the preparation of the new will (and her usual solicitors were not instructed) and that he had a forceful personality and violent history – he was described as a ‘forceful man with a forceful presence’.
There was also evidence that he had attempted to cover up his involvement in the preparation of the will, and he did not even initially disclose its existence. The judge concluded that there was no other rational reason why the deceased would have wanted to change her will, but for his undue influence, and held the will to be invalid accordingly.
This case was unusual because there was no direct evidence of coercion, and there was some commentary at the time that this would ‘open up the floodgates’ for undue influence cases, but it has not done so, and the facts were particularly extreme in terms of Nick and his clear domineering personality.
Schomberg v Taylor
In Schomberg v Taylor, the deceased’s original will left her estate to her stepsons but changed this in favour of her nephews with only small gifts to the stepsons.
The stepsons challenged this with evidence that the nephews’ father had persistently telephoned her about changing her will and this had escalated to such an extent that she had been reduced to tears and she had asked her carer not to put his calls through to her.
The court found that at the time she was vulnerable, having just recently lost her husband and that the nephews’ father was in financial difficulties. The court held there was undue influence as she had been overcome by his pressure and the will did not therefore reflect her true wishes.
Re Chin
In Re Chin, the deceased had five daughters and one son but left almost her entire £3M estate to her son. He argued that the will was rational because it was in accordance with Chinese culture.
However, her earlier will had left her estate equally between her six children so this did not accord with her previous testamentary wishes. The judge found that in fact it represented the wishes of her late husband and son, and that such pressure was applied to her that her own free will was overpowered.
There was evidence that the husband was controlling and violent. The will was held to be invalid on the basis of undue influence.
So, what is undue influence and how do you prove it?
In short, undue influence is coercion. Coercion may take several different formats. It can cover “physical violence, verbal bullying or simply talking to a sick person who is seriously ill in such a way that that person may be induced for quietness-sake to do anything”. In the case of Edwards v Edwards [2007], the court said: “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, e.g. “I am your only child and have done so much for you over all of these years”
- heavy persuasion, e.g. “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, e.g. “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
