Undue Influence in Wills

Contesting a Will Due to Undue Influence

Undue influence occurs when someone pressurises another person to change their Will to gain personal advantage. 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.

Undue Influence and remote witnessing of Wills

Experts at London law firm Osbornes Law warn that a new law meaning wills can now be witnessed remotely, leaves those making wills potentially more vulnerable to undue influence.

Suzanna Baker, a lawyer specialising in wills, probate and Court of Protection matters at Osbornes Law, says:

“At a time when so many are feeling isolated, it is concerning to think that unscrupulous people are willing to take advantage of the current situation to target older or vulnerable people to benefit under their will.  They could be people they have known for long or new acquaintances who deliberately befriended them for personal gain.”

Last week, amendments to the Wills Act legalising the remote witnessing of wills came into force.

The changes are backdated to 31 January 2020 and allow the witnessing of wills via ‘video conferencing or other visual transmission’, such as Skype and Zoom.

Suzanna says, “These changes were needed to ensure those unable to get their will witnessed in person due to the pandemic were still able to make a valid will.  There are concerns about the scope for undue influence or breaches of confidentiality.

“When signing wills remotely, it is hard to rule out completely the presence of someone off camera persuading the testator to sign or secretly listening in to the call, so in these situations, caution is needed.  Wills will also need to be posted to witnesses, so there is also the possibility of signed copies being tampered with. For these reasons, remote signing of wills should be a last resort.”

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 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.”

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.

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