If your loved one has made sudden changes to their Will, someone may have put pressure on them to do so. Proving undue influence can be difficult, so speak to one of our specialist Estates Disputes solicitors today for advice on how best to protect your family.
A deputy must be eighteen years or older. They must also have completed a deputy’s declaration to confirm that they are financially sound and fully understand their responsibilities.
A friend or family member can be a deputy. The role can also be done by a professional, such as a lawyer.
- deciding whether a person has the capacity to make a certain decision;
- giving permission for a one-off decision to be made on another’s behalf;
- handling issues related to powers of attorney;
- appointing deputies to make decisions for others.
What is undue influence?
Undue influence is when someone is pressured into writing or modifying their Will against their own wishes.
Undue influence goes beyond persuasion, however morally dubious. For example, it is not undue influence if someone tells the person writing the Will that they deserve money, or suggests that they will struggle financially if they are not included.
Instead, the court must be convinced that there was coercion and that there is no other reasonable explanation for the Will’s contents. Coercion occurs when the pressure applied overwhelms the testator’s own wishes. It can include physical violence or its threat, verbal bullying or ‘simply talking to a sick person [...] in such a way that that person may be induced for quietness-sake to do anything’ (Wingrove v Wingrove ).
Fraudulent calumny is where someone has poisoned the testator’s mind against another person, knowing that the information they are giving the testator is false or not caring whether it is untrue.
Like undue influence, fraudulent calumny often leads to:
- sudden, unexpected changes to the Will;
- disproportionate sums being left to one beneficiary, particularly if shares had previously been equal.
The central difference between the two claims is whether the testator believes they are acting in line with their own free will. In fraudulent calumny, the testator is misled into believing they are doing the right thing. In undue influence cases, they are coerced into acting against their own wishes.
How does the court assess whether there has been undue influence?
When deciding whether the testator was coerced, the court will consider various factors, including:
- the nature of the relationship between the testator and the accused;
- the testator’s physical and mental strength;
- how the new Will compares with prior Wills and wishes previously expressed by the testator;
- the size and nature of the disputed gift or gifts.
A successful claim must show that the accused was not only in a position to have exerted undue influence, but that they actually did so.
The court requires a high standard of evidence to find undue influence, with the burden of proof on the claimant. Meeting this burden can be difficult as the coercion has often taken place privately, and the most important witness, the testator, cannot give evidence.
If you suspect undue influence has taken place, you should consult a solicitor. They can advise on the strength of your case and examine other grounds of contention that may be easier to prove.
What happens if the court finds there has been undue influence?
If the Will is successfully contested, the court will find it invalid. The estate will pass under the testator’s previous Will, if one exists, or will be distributed following the intestacy rules.
Contact our Wills & Estate Dispute Solicitors in Bournemouth, Poole & Christchurch
If you think your friend or relative has been affected by undue influence, you should act immediately. Solomons Solicitors can offer advice, helping you to establish your case and secure justice for your loved ones.