Challenging a Will on the grounds of undue influence: A legal guide.
(This article was updated in July 2024)
The term ‘undue influence’ is used when a testator (the legal term for a person making a Will) is coerced into making their Will in a way that benefits the person who is coercing them.
The law of England and Wales requires that people are free to make their will according to their own wishes. If they are coerced into doing otherwise, then the Will can be declared invalid on the basis of undue influence.
The existence of undue influence is not always obvious, but warning signs include unexpected changes to previous Wills, and Wills that run counter to someone’s stated intentions.
Undue influence can be exerted by people who are close to the testator, or they may be relative strangers who have been on the periphery of the testator’s life.
Elderly testators or those in poor health are generally most vulnerable to undue influence, especially when it is exerted by people who hold a position of trust, such as a carer or a key family member.
It is important not to confuse undue influence with mere ‘persuasion’, which would not make a Will legally invalid. Coercion frequently takes place behind closed doors, out of the earshot of potential witnesses. This can make such allegations difficult to prove, especially as the testator will have passed away and be unable to give evidence. Undue influence is therefore often raised alongside other allegations when the validity of a Will is contested, such as ‘lack of testamentary capacity’ and ‘want of knowledge and approval’.
Related to undue influence is a legal concept known as ‘fraudulent calumny’. This involves the making of a false and defamatory statement about someone with the intention of damaging their reputation and reducing their standing in the eyes of the testator. By poisoning the testator’s mind, the person committing fraudulent calumny hopes to benefit when their rival is written out of the testator’s Will.
We are often able to work on a No Win, No Fee basis where sufficient evidence of undue influence already exists. Alternatively we can agree a pre-set fee limit to allow us to investigate the case and ascertain whether sufficient evidence is available to dispute a Will. We also represent those who are defending the validity of a Will from a challenge brought on the basis of undue influence.
