Proving undue influence in a will
Challenging a will on the basis of ‘undue influence’ can be difficult, especially if the will in question was prepared by a qualified solicitor. However, even if a solicitor prepared a will it does not mean that there is no hope for success on these grounds. If you have suspicions that someone heavily influenced the maker of the will at the time they executed it and coerced them into doing so against their own volition then it will be worth investigating.
Gathering convincing evidence is crucial when attempting to establish undue influence in a will. Without persuasive evidence, it is unlikely that any out of court settlement will be reached or a judge will rule in your favour if court proceedings become necessary.
The starting point for investigating a challenge to the validity of a will on the basis of undue influence is to request a copy of the solicitor’s will preparation file. This file is likely to contain useful information recorded at the time instructions were taken. Although it is common for executors to refuse permission to access the file, a formal Larke v Nugus request for information can be made. When dealing with these cases we often request the following details from the will preparation solicitors: –
- Any relationship between the will writer and the deceased;
- Any procedure followed to assess the mental capacity of the deceased;
- Any reasons to depart from the terms of previous wills or will-making patterns;
- The method of taking instructions;
- Who was present at the time instructions were given;
- Confirmation that the will was read to the deceased and they understood its terms; and
- The circumstances of the execution of the will.
Obviously, this is not an option where the will was prepared on a DIY basis without the involvement of a solicitor. In these situations it is important to establish as clearly as possible the circumstances in which the will was made and executed.
In all cases it is important to consider contacting people who were involved with the deceased at the time the will was executed. This may include family members, friends, medical practitioners and any other person who may be able to provide an insight on whether the deceased was subjected to undue influence or coercive pressures. In particular, the two people who witnessed the will can often provide crucial evidence.
Medical records may also be obtained where there is question as to the deceased’s mental state and susceptibility to undue influence. This may be relevant where the deceased showed signs of confusion, memory loss, generally poor health, or any other underlying vulnerability. Consider making a ‘subject access request’ for the relevant period or reaching out to the deceased’s GP.
Remember that more than one allegation of invalidity can be made, and cases of undue influence in a will are often made in parallel to other challenges, such as mental incapacity and want of knowledge and approval.
While your enquiries are ongoing you may wish to consider applying for a caveat against the estate. For more information on this process, you can read our article on entering a caveat here.
We will be happy to conduct a free assessment of your case and review any evidence you have obtained. If we consider there are good prospects of success based on your evidence, we may be able to assist by dealing with the case on a no win, no fee basis.
Call 0808 139 1606 or send a brief details of your case to us by email at [email protected].
