Family disputes after death | Undue Influence – The basics of contesting a will

Family disputes after death | Undue Influence – The basics of contesting a will

When someone passes away, it can be a difficult time for you and your family. In some circumstances, this can bring families closer together, however, the death of a loved one can often tear families apart when disagreements begin over the contents of the deceased will. There are a number of things that can be done if you are concerned that your loved ones will does not contain what you believed were their wishes.

On what grounds can I contest a will?

A will can be contested on a number of grounds including:

  • invalid execution of the will;
  • capacity;
  • undue influence;
  • knowledge and approval;
  • fraud;
  • revocation; or
  • forfeiture.

This article aims to cover the basics about what is undue influence and what to do if you think someone in your family may have been affected by this.

What constitutes undue influence?

Undue influence deals with situations where a testator (the person making a will) may have been pressured or coerced into changing their will. Coercion is pressure that overwhelms the testator's own wishes without completely changing their mind. The courts will consider the physical and mental state of the testator as this will show how susceptible they may be to coercion and manipulation.

An example of this is an elderly mother, who has two sons. Son A is happily married with three children, he has a close relationship with his mother and sees her three times a week. Son B is recently divorced and has not spoken to his mother since a family argument in 2012. Son B reconnects with his mother and begins telling her lies about his brother, son A, influencing his mother to think badly of son A. Son B goes so far as to suggest that she should change her will and leave everything to him. The mother changes the will and leaves everything to son B. It could be argued in this example that the mother only signed the will under undue influence, in that son B was telling lies about his brother to poison his mother's mind.

Although the above example is clear, in reality the courts have struggled to set down a firm set of rules to govern this area of law. In these types of cases, the courts seek to establish whether the will is an accurate reflection of the testator's wishes and not someone else's. The courts have decided that it is not enough for someone to prove the possibility of undue influence but rather that the undue influence was used to overbear the wishes of the testator when the will was made.

The case of Edwards v Edwards (2007) also ruled that "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". This creates quite a high standard of proof for undue influence when contesting a will, the burden of which lies with the claimant (the person contesting the will). In successful cases of undue influence, claimants need to prove that the testator's free will was completely oppressed.

How can I prove undue influence?

Finding direct evidence to support a claim of undue influence can be extremely difficult, as often the coercion will have been done in private and will not be in written correspondence. This, however, does not mean it is impossible to prove cases of undue influence. The courts have recently accepted, in the case of Schrader v Schrader (2013), that undue influence can be proved without the need for direct evidence. It is imperative to consider the evidence you have carefully before bringing a claim for undue influence, as the courts will rely heavily on its quality.

Before bringing a claim for undue influence, we would recommend you seek legal advice as there may be other grounds of contention which are also applicable.

How long have I got to bring a claim?

In order to contest a will by reason of undue influence, you need to do so within the applicable time limit. This can be as little as 6 months after the grant of probate. We encourage clients to seek legal advice as soon as possible.

What happens if I prove undue influence in the courts?

If the will is successfully contested, this means that the court confirms the will is invalid, and the estate will pass under the testator's earlier will, if they had one. If they do not have an earlier will then the estate will be distributed according to the intestacy rules.

At Clapham & Collinge we have a dedicated team of experts who are able to provide you with all of the necessary information, support and legal advice on will disputes and how they can be resolved. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.