Grounds for Setting Aside a Will: Undue Influence – July 2020

July 22, 2020

Grounds for Setting Aside a Will: Undue Influence

The loss of a loved one is already an incredibly difficult and emotional time. Sometimes the situation is made worse by the discovery of suspicious circumstances surrounding the making of the will. This series of posts will examine some of the ways in which a will can be challenged.

In this first post, I will consider undue influence.

There have been many attempts over the years to define undue influence.  Perhaps the most succinct definition was given by Sir J.P. Wilde in Hall v Hall (1868) L.R. 1 P. & D. 481, 482: “Pressure of whatever character… if so exercised as to overpower the volition without convincing the judgment.”

The necessary element of undue influence is coercion.  While it would be fair to say that coercion need not be actual physical coercion or violence, it must go beyond giving advice or ordinary persuasion. In Daniel v Drew [2005] EWCA Civ 507, Ward LJ said: “The donor may be led but she must not be driven and her will must be the offspring of her own volition, not a record of someone else’s.

There is no presumption of undue influence in relation to wills like there is with lifetime dispositions and transactions.  The burden of proof lies on the person who asserts that there has been undue influence. When discussing this burden of proof Lewis LJ said in Re Edwards (deceased) [2007] EWHC 1119 (Ch):

“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. In the modern law, that is, perhaps no more than a reminder of the high burden, even on the civil standard that a claimant bears in proving undue influence as vitiating a testamentary disposition.”

The difficulty is that there is unlikely to be any direct evidence of undue influence as it tends to happen behind closed doors and the main witness would have been the testator.  Therefore, historically, undue influence has been one of the most difficult allegations to sustain.

That said, there have been a number of instances where the court has inferred that the execution of the will must have been as a result of undue influence.  In Schomberg v Taylor [2013] EWHC 2269 (Ch), the court was persuaded to conclude that there had been undue influence when confronted with evidence of persistent telephone calls to an unwell and grieving testator.  In Schrader v Schrader [2013] EWHC 466 (Ch), undue influence was inferred from the forceful personality of the testator’s son and the testator’s dependency upon him.

These cases demonstrate that the surrounding circumstances are of the utmost importance in establishing undue influence.  The following is a non-exhaustive list of potentially relevant factors:

  1. the testator’s level of dependency on the influencer;
  2. the frequency and nature of the testator’s contact with the influencer;
  3. the testator’s personality and behaviour;
  4. the influencer’s personality and behaviour;
  5. the testator’s relationship with others, especially if the testator became more isolated;
  6. whether the will was a departure from earlier wills;
  7. whether a solicitor was involved in drafting the will;
  8. who contacted and communicated with the solicitor;
  9. how and what instructions were given in respect of the will.

Most recently, in Re Chin [2019] EWHC 523, a finding of undue influence was made in circumstances where, after many arguments, the testator succumbed to the views of her traditionalist husband for the sake of a quiet life. It has since been suggested that the court is now taking a more relaxed approach to allegations of undue influence.  In my view, while Re Chin does add to the increasing number of successful challenges in recent years, the burden of proof remains high and a claim of this nature should not be embarked upon lightly.

If undue influence is raised, it must be specifically pleaded (para. 8.2 of CPR PD 16) and there are adverse cost consequences if unsuccessful.  If the evidence is not likely to be sufficient, the better course may be to rely upon want of knowledge and approval and/or lack of capacity.  I hope to consider these grounds in future blog posts.

Robert Herrod

Disclaimer: This post is for information purposes only.  It does not provide legal advice and no liability is accepted for the accuracy or correctness of the post, or for the consequence of relying on it, by any member of Chambers or Chambers as a whole.

Tags:  Civil Litigation, Trusts, Estates, Probate and Private Client

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