You can challenge a Will if someone unduly influenced, coerced or put under duress the person who was making the Will. There is no presumption that just because someone in a position of trust receives assets from another person, that undue influence took place. You must show actual undue influence, where there must be no other reasonable theory to explain the terms of the Will.
When a claim of undue influence is made, the burden of proof shifts to the person alleging the undue influence. However, of note, recent case law has seen the courts more willing to accept arguments that undue influence has taken place. A good example is the case of Schrader v Schrader , involving a mother who left her home in its entirety to her son Nick. The Court took the mother’s vulnerability, her dependence on her son Nick, the engagement of a will-writer at Nick’s behest with no prior contact with the family, and Nick’s character and violent history into account when reaching their decision which was that undue influence had taken place. Her Will was therefore found to be invalid, and her estate passed under the terms of a previous Will she had made.
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Undue influence: points to note
A sub type of undue influence is known as ‘fraudulent calumny’ – the making of a false and defamatory statement about a third party in order to damage their reputation. In these type of cases, the Testator, or Testatrix, is usually an elderly and/or vulnerable person who is subject to an overbearing person – often one of their children.
An example case is Re Edwards . The facts of the case are that the Testatrix (the person who made the Will), was frail and vulnerable. She was frightened of her son who, in the period leading up to her making a Will, deliberately poisoned her mind by making deliberately untruthful accusations about her other son and her other son’s wife. This caused her own discretion and judgment to be overborne.
Lewison J sets out the correct approach for assessing a case of undue influence:
- In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
- Whether undue influence has procured the execution of a will is therefore a question of fact;
- The burden of proving [undue influence] lies on the person who asserts it. 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 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;
- In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
- Coercion is pressure that overpowers the volition without convincing the testator’s judgment. 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 judgment discretion or wishes, is enough to amount to coercion in this sense;
- 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 was 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;
- There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is ‘fraudulent calumny’. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
- The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.
- 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.
Note that just because the Testator or Testatrix was elderly and vulnerable does not mean that a claim for undue influence will succeed. In Nesbit v Nicholson re Boyes  fraudulent calumny was claimed but given the nature and seriousness of the allegation, a high degree of proof was required and this was not satisfied.