Areas of Practice
Contested Probate » Undue-Influence

Undue Influence - Setting Aside a Will

Challenging a Will on the basis of undue Influence.

If it can be established that a person was coerced into signing their Will a Court may set the will aside.This may result in the estate being distributed as per the terms of an earlier will or the Rules of Intestacy. Coercion can in short be described as a pressure that overbears a person's free will and wishes.

Setting aside a Will can be more difficult than setting aside a life time transfer.This is because unlike a lifetime transfer procured by undue influence there is no presumption of undue influence in testamentary dispositions.

The Law in respect of setting a will aside for Undue Influence is set out by Lewison J in Edwards v Edwards [2007] WLTR 1387 

 "Judge Lewison summarised:

 i) In a case a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii) Whether undue influence has procured the execution of a will is therefore a question of fact;

iii) The burden of proving it lies on the person who asserts it. It is not enough to prove 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 modern law this 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;

iv) In this context undue influence means exercised either by coercion, in the sense that the testator's will, must be overborne, or by fraud.

v) Coercion is a pressure that overpowers the volition without convincing the testator's judgement. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgement discretion or wishes, is enough to amount to coercion in this sense;

vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A "drip drip" approach may be highly effective in sapping the will;

ix) The question is not whether the Court considers that the testator's testamentary disposition is fair because; subject to statutory powers of intervention,a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent."

Schrader v Schrader is an interesting undue influence case as it was not possible to determine the precise nature of the pressure or the occasion it took place. The Deceased had two sons, in her first Will she had left her farmhouse in equal shares to her sons. On her death it was discovered she had made another Will, in the new will the farmhouse was left to one of her sons. The son who benefited arranged for a Will writer to visit his mother, but denied applying any pressure to her or having any knowledge of the contents of the new Will at the time she signed it. At trial it transpired that the son who benefited knew of the Will's contents as his handwriting was on the draft. Undue Influence was established. http://www.bailii.org/ew/cases/EWHC/Ch/2013/466.html

We have notable success in defending and pursing applications to set aside Will's on the basis of undue influence. Call us to discuss your case on 02920 263800. We take undue influence cases from all over the UK.

 

Top