Undue Influence and poisoning of the mind when making a will

One of the most frequently raised grounds for challenging a will, by potential clients, is undue influence.  That is that someone, often a family member (the influencer), has unduly influenced the will maker (testator) into making their will.  Whilst the cases are always unique in their facts, they do have striking similarities; they usually involve an elderly relative, and the influencer is a younger, fitter family member or person who took advantage of the older testator.  The complainant calling me has concerns that the younger person may have unduly influenced the testator into witing a will to benefit the influencer.  Sometimes the will only comes to light after the testator’s death.  There is usually little evidence of any undue influence other than the complainant’s instinct.  Part of undue influence can involve restricting the testator’s interaction with the outside world, which can also mean that friends and family have been excluded from visiting or making contact.  There are therefore often few people who can give evidence of the extent of the influence.

In these cases, I usually explain how difficult it is to prove such allegations without strong evidence and the complainant is often able to mount a will challenge using a separate ground for challenge, in any event, so the undue influence point is not so relevant.  However, it got me thinking about what the requirements are for challenging a will on the grounds of undue influence or fraudulent calumny and why are these types of will challenges so difficult to prove?

It is helpful to consider the definition of undue influence.  Undue influence is when someone is pressured into making a will or making changes to an existing will, in favour of someone else.  The influence has to be ‘undue’ so coercion or fraud is required.  Proving influence itself without a degree of coercion does not constitute undue influence.  It is not illegal to influence someone into making a will.  As the influence often takes place behind closed doors there is often little evidence of the nature of the influence, which makes these types of claims notoriously difficult to prove.

Fraudulent calumny is a form of undue influence but differs in that, the testator has made the will of their own volition but their perception of a beneficiary has been twisted by the influencer.  In other words, the influencer has fed the testator incorrect information about a beneficiary with the deliberate intention of having them excluded from the will.  It has been described as a poisoning of the testator’s mind in a drip, drip manner.  The influencer is either aware the information is incorrect or is reckless as to whether it is correct or not.

The question the court has to decide is not whether the dispositions in the will are fair but rather whether the testator acted of his/her own free will when making them.  If not then the will can be set aside.

Both types of undue influence are difficult to prove primarily because of the difficulty with obtaining evidence and the requirement that such evidence be strong.  You need to provide evidence that not only was the testator influenced into making a will by a third party but that the influence exerted was such as to completely oppress the testator’s free will.  Evidence is usually provided in the form of witness statements from people who are able to contest to the relationship between the testator and the influencer and the degree of influence exerted.  Documentation from a will writer or solicitor can also be useful.  The aim of the evidence is to provide a clear picture of the circumstances surrounding the preparation of the will but all things considered, the court will weigh up the evidence on the balance of probabilities.

If there is sufficient evidence of either an ongoing poisoning of the mind or coercion into making a will against the testator’s intention then the will can be set aside.  Because of the difficult in proving undue influence, there is an emphasis on evidence and legal advice should be taken sooner rather than later.

The Burnside Partnership is experienced in providing advice on these types of claims and is happy to discuss any concerns.

Tara McInnes

Partner – Contentious Wills and Estates

April 2021