Conversation or Coercion?


By Max Williams

Wills Made by Undue Influence

A will is an important document for people to control who receives their assets upon their death.  For older persons who are nearing the end of their lives, especially when their assets involve significant wealth such as real estate, their will can become of special interest to their next of kin.  According to a recent elder abuse study conducted by the Australian Government, nearly 75% of those surveyed over the age of 65 years had discussed their will with someone in their family.[1]

While there is nothing necessarily unscrupulous about family members discussing their older relative’s will, at what point does an older person become the victim of undue influence from a family member when making his or her will?  This article will look at undue influence as it relates to the making of wills.

What is undue influence?

If a will is found to be made by way of undue influence, it is invalid.  Undue influence in this context requires someone to have coerced the will-maker (also called a ‘testator’) to have made his or her will such that it cannot be said to reflect the will-maker’s true intentions.  Coercion must amount to actual force or threats.  It is not enough to show that a person had the power to overbear the will-maker’s will; it must be proved that this power was actually exercised to produce the impugned will.[2]

Coercive behaviour can come in many different forms as outlined in Wingrove v Wingrove:[3]

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage or illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion though not actual violence.”

An infamous example of behaviour that constituted undue influence is addressed in the case of Re Harden,[4] in which a psychic told a will-maker how to structure her will under the guise of messages from a deceased person and that (not surprisingly) included the psychic as a beneficiary.  An extreme illustration of undue influence was also used by Lord Cranworth in Boyse v Rossborough[5]:

If I meet a man in the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand…it was my will to hand over the purse…but the law deals with the case as if [it] had been obtained against my will, my will having been the result…of fear…The same principles must guide us in determining whether an instrument duly executed in point of form, so far as legal solemnities are concerned, is or is not a valid will.”

It is important to note that not all influences upon a will-maker are unlawful.  It may be perfectly acceptable for someone to persuade or convince a will-maker about how to structure his or her will.  However, influence that overpowers the will-maker without convincing his or her judgement will constitute undue influence.  As it was helpfully put in one case, “a testator may be led but not driven.[6]

Who can make a claim of undue influence?

The court will only allow someone to challenge a will on the basis of undue influence if he or she has a proper interest in the administration of the estate (e.g. a beneficiary under a previous will).  In other words, if the person alleging undue influence has nothing to gain from the impugned will being found invalid, he or she does not have standing to bring proceedings.

What happens if undue influence is successfully proved?

The onus of proving a will was executed under undue influence falls on the person alleging the undue influence.  The usual remedy where actual coercion is proved is that the impugned will (or codicil) is passed over and probate in solemn form is granted of the last valid will (or a grant of administration where there is no such will).

However, if it can be proved that only a certain portion of the will was produced by undue influence, the court is able to effectively sever that portion and grant probate of the rest of the will provided it was unaffected and remains coherent.[7]

If you suspect that a deceased loved one has been unduly influenced to make a will, please contact us to obtain advice as to your rights.

[1] Australian Institute of Family Studies, National Elder Abuse Prevalence Study (Final Report, July 2021) 99.

[2] Wingrove v Wingrove (1885) LR 11 PD 81 at 83.

[3] Ibid at 82 to 83.

[4] [1959] CLYB 3448.

[5] (1857) 5 HLC 1; 10 ER 1192 at 1209.

[6] Hall v Hall (1868) LR 1 P & D 481 at 482.

[7] Nicholson & Ors v Knaggs & Ors [2009] VSC 64 at [703].

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