Undue Influence in Wills

What is Undue Influence in Wills?

Undue influence occurs when someone coerces another person into making or changing their will, so that it no longer reflects their own wishes. You may suspect that undue influence has occurred if there were changes to a loved one’s Will that were:

• Made shortly before they died
• Different from what you had been told
• Someone new has been mentioned in the Will who wasn’t previously or
• The new beneficiary has a much larger inheritance than previously stated
• The deceased was dependent upon the beneficiary
• The deceased was frail and susceptible to influence

Cases of undue influence are difficult to prove because the changes are made in private with no other witnesses. They may have depended on the beneficiary, which could have influenced them to change their Will. People in a position of trust, such as carers and close relatives who spent much time looking after the deceased, may have influenced the decision but not necessarily asserted undue influence. This makes cases very hard to prove, given circumstances where there is a lack of evidence.

• Read our blog post on the rise of fraudulent calumny  where it is claimed that a beneficiary has used undue influence to poison the mind of the deceased against a relative.

Contesting a will due to Undue Influence

Once a will has been made, contesting a will or challenging a situation where you believe a friend or relative has been taken advantage of will be difficult.

Suzanna Baker, a lawyer specialising in wills, probate and Court of Protection matters at Osbornes Law, warns: “If you have concerns that someone is being manipulated, it is important to act quickly. If their will is changed and suspicions are not raised until after death, the assumption will always be that the will is valid. It can be difficult to prove undue influence if they can no longer explain their actions.”

How is undue influence proved?

To succeed, you must show that the person who made the will was coerced: pressure that overpowered their own judgment and wishes. Persuasion is allowed. The courts have long said that a person making a will “may be led but not driven”, so appeals to affection, gratitude or pity are not undue influence on their own. Pressure can become coercion, though, if the person gives in for a quiet life rather than because they agree, and a frail or ill person can be overborne by less pressure than a healthy one.

The burden of proof is on the person challenging the will. Unlike some gifts made during a person’s lifetime, the law does not presume undue influence in a will, even where the person who benefited was a carer or close relative.

The court decides the claim on the balance of probabilities, but because undue influence is a serious allegation, the evidence must be cogent. It is not enough to show that someone had the opportunity to influence the person, or that the facts are consistent with undue influence. Undue influence must be the most likely explanation. In Rea v Rea [2024] EWCA Civ 169, the Court of Appeal overturned a finding of undue influence because each factor the trial judge relied on had an innocent explanation, so undue influence was not the most likely one.

Evidence that can help includes:

• medical and care records showing how vulnerable the person was;
• the solicitor’s file notes if the will was drawn up professionally;
• how the will changed from earlier wills, and the timing of the change;
• who arranged and attended the meetings; and
• what friends, family and carers saw and heard.

If the court finds that the will, or part of it, was obtained by undue influence, that will or gift will not stand. An earlier valid will then takes effect or, if there is none, the intestacy rules apply.

Other ways to challenge a will

Undue influence is only one reason a will can be challenged. Others include that the person lacked the mental capacity to make the will, that they did not know and approve its contents, that it was forged, or that it was not signed and witnessed correctly. If you think you may have a claim, speak to our contesting a will solicitors as soon as you can, because delay can make a claim harder.

How can you protect against Undue Influence?

Suzanna offers the following advice to those worried about a friend or relative:

• Your starting point must be to talk to the person you have concerns about. Despite your worries, do listen and don’t force your views on them. Age UK offers advice for handling such conversations.
• It may be necessary to inform anyone in their support network of your concerns and ask them to be vigilant. This might include neighbours, carers, GP, banks or local shops.
• If you think your friend or relative can no longer make their own decisions, contact the adult safeguarding team at their local council or GP, who can assess their mental capacity. However, it is important to remember that if someone can make their own decisions, they have the right to make those decisions even if you think they are wrong.
• Where an individual has mental capacity but is willing to have you help them or take over decision-making concerning financial or welfare matters, they can apply for lasting power of attorney through the Office of the Public Guardian directly or via a solicitor.
• If your friend or relative has been assessed and is found to lack mental capacity, it may be appropriate for you to apply to the Court of Protection to become their Deputy. If appointed, you can make decisions on their financial affairs and welfare.

How can Osbornes Law help?

If you want to speak with Suzanna or another team member, call 0207 485 8811 or complete an online enquiry form.