How to contest a will?

There are a number of grounds to contest a will.  This article is part of a series which aims to identify whether it is possible to contest a will. 

One of the grounds for contesting a will is that the person who made the will (known as the testator) was subjected to undue influence.  

Definition of undue influence

Sir J. P. Wilde initially defined undue influence in the case of Hall v Hall [1868] as being “pressure whatever character … if so exercised to overpower a person’s wishes.”  Sir James Hannen further defined undue influence in the context of executing a will in the case of Wingrove v Wingrove [1885] as being “to be undue influence in the eye of the law there must be – to sum it up in one word – coercion.

Coercion when contesting a will

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 testator was deliberately told incorrect information by one of her children in order to secure an inheritance, which amounted to undue influence, i.e. “deliberate poisoning of a person’s mind”. The key question to be determined when contesting a will is whether the conduct is such that it overpowers the will of the testator. 

The amount of influence required to induce a person of weak mind and ill health to make a will may be considerably less than that necessary to induce a person of strong mind in good health. A “drip drip” approach may be highly effective in sapping the will of a testator.   

Different types of influence

In all cases involving undue influence, except those involving a will, there may be a presumption of undue influence where there is a relationship of trust and confidence with the wrong-doer. Such relationships may include parent/child; solicitor/client; and trustee/beneficiary relationships. In these type of cases it will be for the wrong-doer to prove that the complainant entered into the transaction out of his free will.

No presumption of undue influence exists when contesting a will. It must be shown that actual undue influence occurred. In such situations it is for those contesting a will to prove undue influence occurred.  

Whilst presumed undue influence has no place in cases involving contested wills, if it can be shown that there is no other hypothesis to explain the actions of the testator, other than undue influence, a judge may then find undue influence occurred (see Edwards v Edwards [2007]).

Suspicious circumstances which do not amount to undue influence

Even though there may be suspicious circumstances surrounding the making of a will, claimants and solicitors should be extremely cautious before contesting a will based on undue influence as the hurdles remain “high”. Examples of where a claim for undue influence in contesting a will have been successful are few and far between. It is easier to list examples which do not amount to undue influence than those which do. Cases which detail questionable conduct but do not amount to coercion include appeals to family ties or affection (1) “I am, your only son”; (2) “I am your best friend”; (3) “Remember all the things I have done for you”; and (4) “I’ll end up on the scrap heap”. Providing the testator is not over-borne, strong persuasion and heavy family pressures, deliberate concealment and wheedling one’s way into the affections of a vulnerable testator do not amount to coercion.

There will only be undue influence if the following statement is answered positively. If the testator were alive would he/she say “this is not my wish but I must do it”?  Coercion by its very nature often takes place behind closed doors and the key witness, i.e. the testator, is no longer able to give evidence, thus making it difficult to succeed with a claim for undue influence. If there are suspicious circumstances, it may be easier to succeed with challenging the will on the grounds of “knowledge and approval” or “testamentary capacity”. 

Implications

Where a will is successfully disputed and the court confirms the will is invalid, if there is not an earlier valid will, then the testator’s estate will be distributed according to the intestacy rules. 

Other articles in the series: 

    About the author

    Martin Oliver Partner

    Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts. "He has a very good legal brain, an eye for detail and a tactical sixth sense ... " 'Chambers & Partners 2014