In essence, there are three main grounds for disputing the validity of a Will. Firstly, where there is a lack of testamentary or mental capacity to give appropriate instructions. Secondly, where there is a lack of “knowledge and approval of the contents” even if there is sufficient mental capacity. And, thirdly, if there has been undue influence on the testator, or Will-maker, by an overbearing relative or adviser.
Undue influence in probate refers to situations where a person preparing their Will has been under pressure to write it in such a way that it goes against their real intentions. The most obvious reason why someone may employ coercion in this way is so they can benefit from the estate.
Understanding undue influence
Discovering that a deceased parent has left their worldly goods to someone that is not believed to be deserving of the estate can be galling. It may be thought that the deceased person had been taken advantage of when writing their final Will. In more extreme cases the extent of this may amount to ‘undue influence’ which might be challenged in Court.
In the leading English case of Wingrove v Wingrove (1885) 11 PD 81, which has been endorsed by the Australian courts, the judge commented that:
“To be undue influence in the eye of the law, there must be-to sum it up in a word-coercion... The testator is in such a condition that if he could speak his wishes to the last, he would say, ‘This is not my wish, but I must do it’”.
In order to establish undue influence, it is insufficient to establish that a person has the power to overbear the will of the Will-maker. It is necessary to go further and show that the resultant Will was a product of the exercise of that power.
Illustrative case: Edwards v Edwards (2007)
A modern restatement of the required standard of proof to establish undue influence was made in the recent English case of Edwards v Edwards (2007) WTLR 1387.
In Edwards, the deceased had initially executed a Will leaving her estate to her three sons equally. She had a close relationship with two of her sons but not the third. However, just before her death, she made a new Will leaving everything to her estranged son. She also started making allegations of theft of her property against her formerly favourite son.
The Court held that there was no presumption of undue influence, but it is a matter of fact. The burden of proof as to whether the undue influence involved falls on the person contesting the validity of the Will. The judge asserted that “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 this case, the judge concluded that there was ‘no other reasonable explanation’ for the deceased’s behaviour other than she had been affected by her third son’s undue influence.
Proving undue influence
The Court in Edwards went on to set out some proposed criteria for proving undue influence, namely:
- The facts are inconsistent with any other hypothesis.
- The influence is exercised by coercion where the deceased’s own discretion and judgment are overborne so that the person making the Will has not acted freely in making their dispositions
- The influencer has taken advantage of the deceased and benefited from the Will. Evidence for this will be seen in bequests of property that would not normally be expected and family being left out in favour of others without obvious explanation.
The Will-maker's physical and mental strength are both relevant factors in determining how much pressure is necessary to overpower the Will. They may be particularly dependent on someone for no obvious reason. Illness and frailty can increase susceptibility.
Direct evidence of undue influence would be unusual given that by its very nature, it happens behind closed doors or “goes on when no-one is looking” as one judge put it. As such, claims for undue influence in disputes over Wills can be very difficult to prove. This emphasises that the quality of evidence needs to be considered very carefully in concert with expert advice when considering whether to issue a claim alleging undue influence over a Will.
Is it likely that a claim for undue influence will succeed?
Undue influence can be difficult to prove. The Will-maker clearly cannot testify about their reasoning and motivations for distributing their estate in the way that they did. The Court will need to rely on witnesses who knew the deceased such as their doctor, close family members and the lawyer who drew up the Will. These individuals may be called upon to testify about their knowledge of the relationship between the deceased and the person accused of exerting undue influence.
The burden of proof is high, with the result that there have not been many cases where undue influence has been upheld. In the absence of sufficient evidence, providing there are suspicious circumstances about how the Will came to be made, a claim for lack of “knowledge and approval of the contents” may provide better prospects for success than a claim for undue influence. In these circumstances, the burden of proof is transferred, and it becomes the burden of the party who is relying on the disputed Will to satisfy the Court that it was reflective of the deceased’s intentions.
As was explored in detail in our blog ‘Challenging the Validity of a Will Made under Suspicious Circumstances’, the party defending the validity of a Will has to remove those suspicions by proving that the Will-maker did have the knowledge and approval of the contents.
Contact our Contesting a Will Solicitors in Sydney, NSW
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