A basic guide to undue influence

The doctrine of undue influence can occur in every area of law and everyday life. Essentially, undue influence is when an individual is coerced into taking action which does not reflect their true wishes. 

In this article, we explain what undue influence is in the context of Wills and probate, the different types of undue influence and how to make or defend a claim of undue influence.

What is undue influence?

Undue influence is when a person unfairly influences another person, often a vulnerable individual, to take an action that is against their will. It is more than persuasion, and is pressure that overpowers volition.

If undue influence can be proven, it can be used to challenge the validity of a Will. In such circumstances, the Will is not valid because it does not reflect the testator’s true intentions.

Undue influence can take two forms; actual undue influence and presumed undue influence.

Actual undue influence

With actual undue influence, the person claiming to have been influenced, (or their representatives if the person is incapacitated or deceased), must prove that the person was unfairly pressured and influenced by another. The individual claiming undue influence must establish that (i) their consent to enter the transaction was not given of their own free will, (ii) there was improper conduct by the other party and (iii) a causal link between (i) and (ii).

It is not enough for the person to have been influenced by another person — there will need to be an element of ‘improper pressure’ for the claim to succeed.
Improper pressure might include:

• emotional manipulation
• threats of physical harm
• extortion.

When it comes to Wills, actual undue influence may have taken place if a person can be shown to have unfairly pressured the person who made the Will into changing their Will.

Presumed undue influence

Where an individual cannot claim undue influence, they may be able to raise a presumption of undue influence. Case law has held that in order to presume undue influence, the following two conditions should be satisfied:

1. There is/was a pre-existing relationship of influence (or ‘trust and confidence’) between the parties; and
2. The transaction is one that calls for explanation.

In respect of the first condition, a key element of the relationship between the parties is that there is an imbalance of power. Examples of such relationships might include:

• doctor and patient
• solicitor and client
• parent and child
• religious adviser and follower
• trustee and beneficiary.

In cases of presumed undue influence, the burden of proof switches from the person claiming undue influence to the person accused of it. The accused person will need to demonstrate that they did not act in a way that prevented the other person from acting against their own free will.

In respect of the second condition, it must be proved that the “transaction is not readily explicable by the relationship of the parties”.  This condition is therefore dependent on the nature and relationship of the parties, as well as the circumstances surrounding any transaction. 

Contesting a Will on the grounds of undue influence

You can contest a Will if you believe that the testator may have been subject to undue influence.

Common signs that undue influence may have taken place in the context of Wills include:

• the Will being changed suddenly and unexpectedly
• the testator being vulnerable at the time the Will was changed, either through isolation or a medical condition
• one beneficiary benefiting from a substantial change to their share of the estate
• a previously excluded person becoming a beneficiary
• changes to the Will that seem to be detrimental to the interests of the testator.

For a claim to be successful, you will need to present evidence that undue influence occurred or that a relationship of trust and confidence existed between the testator and the person accused of undue influence.

Proving undue influence

Undue influence can often be difficult to prove since it usually takes place in private and may not leave any firm evidence. This is particularly the case with actual undue influence, where the burden of proof lies with the claimant.

In the context of Will disputes, proving undue influence will require you to demonstrate that:

• the testator was manipulated into making a Will that did not reflect their wishes
• the testator was vulnerable
• there were suspicious circumstances, such as a sudden and unexpected change to a Will.

Defending accusations of undue influence

If you have been falsely accused of undue influence, you will need to demonstrate that you did not unfairly influence the testator.

How you do this will depend on whether the claim is one of actual undue influence or presumed undue influence.

Defending claims of actual undue influence

As we have discussed above, in claims of actual undue influence the burden of proof lies with the claimant.

You can help defend yourself from the accusations by demonstrating the following:

• that there was no improper pressure or coercion
  While it is hard to prove a negative, you may be able to demonstrate this through witness testimony or through logs of correspondence, such as emails or texts between the parties.
• the testator’s decision was their true wish
  Few things will be more effective in defending an undue influence claim than if you can demonstrate that the testator’s decision reflected their true intentions. Again, you may be able to demonstrate this through witness testimony or logs of correspondence.
• the testator was exercising their own free will
  You can demonstrate this if you have evidence of the claimant’s mental capacity and understanding of their decision. If there were any witnesses, it also may be useful to obtain their evidence to confirm exactly what happened when the decision was made.

Defending claims of presumed undue influence

As outlined above, if the claimant can demonstrate that a relationship of trust and confidence existed between you and the testator, this is presumed undue influence and the burden of proof will shift to you.

To defend a claim of presumed undue influence, you will need to demonstrate at least one of the following defences:

• that you provided independent and competent advice
  This is the most common and effective way to defend a claim of presumed undue influence. If you can demonstrate that you provided independent, competent and fully formed advice and that the testator understood the implications of their decision, you may defeat the claim. Furthermore, it may also be useful if it can be proved, (if you had an interest within the relevant decision), that the claimant sought, or was advised to seek, independent legal advice in relation to the terms.
• the testator was exercising their own free will
  This can be demonstrated where evidence can be provided in respect of the claimant’s mental capacity, confirming that they fully understood what they were signing and their decisions.
• that the testator’s decision was explicable
  If you can demonstrate that the testator’s behaviour was explicable or fit an established pattern of behaviour, this would also be useful to defend against any prospective claims. 

Can we help?

If you need guidance or support with an undue influence claim, contact our will dispute lawyers.