Inheritance disputes have increased over the past several years. There is a noted rise in family members attacking the will of a deceased and contesting its validity. The misconception that the last will and testament of a deceased cannot be revoked is slowly disappearing.
There are several grounds on which a will can be contested. In principle, a Court will pronounce against the validity of a will if:
there is a lack of due execution;
the deceased lacked mental capacity at the time the will was executed;
the deceased lacked the required knowledge and approval of the will; and
undue influence was applied on the testator.
The courts have previously revoked wills on grounds of undue influence, as evidenced in Hall v Hall (1868) L.R 1 P&D. However, the concept of undue influence in probate matters is different from the one in equity and succeeding in an action on this ground can prove difficult.
Equity
In equity, there are three classes of undue influence. Class 1 consists of cases of actual or express undue influence. In such cases, the person complaining of the undue influence will have to show that he entered into a specific transaction as a result of undue influence exerted upon him and not out of his free will. The burden of proof lies with the complainant.
Class 2 consists of two cases of presumed undue influence. Class 2A consists of certain well-known relationships which are irrebuttably treated as relationships of trust and confidence such as parent/child, solicitor/client and trustee/beneficiary relationships. Case 2B consists of other cases where the complainant establishes that he was accustomed to place trust and confidence in the wrongdoer.
In such Class 2 cases, it is sufficient for the complainant to establish there is the existence of a relationship of trust and confidence with the wrongdoer and the wrongdoer abused this relationship and influenced the complainant to enter into a transaction. The burden of proof in presumed undue influence therefore shifts to the wrongdoer – he has to prove that the complainant entered into the transaction out of his free will.
Probate
The concept of undue influence in probate is much narrower because it only involves actual undue influence. Undue influence cannot therefore be presumed when contesting a will.
It is important to differentiate between applying actual undue influence on the testator and a testator being influenced by some sentiments. Persuasion, appeals to the testator’s affections, gratitude for past services or pity for future destitution are all legitimate and may be fairly pressed upon the testator. However, pressure directly leading to the testator acting on the fears or hopes is not legitimate if the pressure overpowered the testator’s volition without convincing his judgment. How is the distinction made?
The key element is coercion. Without coercion, the influence applied does not amount to undue influence. Coercion may be of the grossest form such as actual confinement or violence. Alternatively, it may be subtle such as pressure applied to the testator in his last days or hours of life when he is so weak and feeble that very little pressure will be sufficient to achieve the desired result. How do we determine coercion? The test applied in Wingrove v Wingrove (1885) and which should be and is still used in every case is whether the testator would say after all is said and done ‘This is not my wish but I must do it’.
Contesting a will on grounds of undue influence is particularly difficult for the person alleging it as he has to adduce evidence to show there was actual undue influence. As a result of this evidential hurdle, undue influence is not commonly used. Other grounds such as lack of knowledge or mental capacity are relied upon as they are easier to establish evidentially.
For a no obligation chat about disputing a Will where there was undue influence, please contact Martin Oliver on 01926 880751.
