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What is undue influence in relation to wills?

When lawyers talk about undue influence in relation to wills they are referring to a situation where someone has coerced or applied pressure to get a will-maker to sign a will. Undue influence affects whether a will is valid or not.

In extreme cases someone may be physically or emotionally controlling a will-maker to such a degree that the will-maker is frightened of not doing what the person says.

The key question in undue influence cases is whether the terms of the will are consistent with the real wishes of the will-maker. In other words, are the terms of the will dictated by external pressure or do they represent the will-maker’s own free judgment?

All influences on a will-maker are not necessarily undue influences. This means that persuasion, feelings of gratitude for past services or pity for someone’s economic circumstances can be valid and fair influences which a will-maker takes into account in deciding the terms of her or his last will.

What can I do if I have undue influence concerns about the last will of a deceased family member or friend?

Undue influence affects whether a will is valid or not. If you are unhappy about the terms of a will which a deceased family member or friend signed because he or she was coerced or pressured by someone into making the will then you can lodge a caveat with the High Court. Once a caveat is lodged the caveat will prevent probate being granted for the will without notice to you. If you have lodged a caveat you will be given an opportunity to oppose the grant of probate for the will. You will need to provide evidence of the facts which you rely on which establish that the will-maker was coerced or pressured into making the will.

What does grant of probate mean?

The granting of probate is the first step in the legal process of administering the estate of a deceased person. In order for the administrators (the administrators are the persons who are named in the will as the executors. The executors have responsibility for administering the estate) to administer the deceased’s estate they need to apply to the High Court for a grant of probate.

Once probate is granted to the administrators they have the legal authority to sell and distribute the deceased’s property. Without a grant of probate the administrators cannot legally take control of the deceased’s property.

What is the procedure for challenging a will once a caveat is lodged?

Let’s say the will-maker is a lonely and frail elderly person infatuated with a friend from bingo who has isolated the will-maker from family members and taken control of the will-maker’s financial affairs. The ‘friend’ arranges for the will-maker to sign a will leaving all his or her worldly possessions to the friend.

In that case the executors named in the will should (and if there is already a caveat lodged preventing the grant of probate and the High Court orders it, must) apply for probate in solemn form. This means that the executors will have to formally prove that the will-maker made the will without being unduly influenced in doing so.

The executors will have to give notice of the application for probate to the caveator (that is the person that lodged the caveat), the deceased’s close family members and anyone else named as a principal beneficiary under an earlier will.

The High Court will then ask the interested parties to file evidence which supports or opposes the grant of probate for the will. The Court will closely examine the evidence as to whether the will-maker signed the will with or without coercion or undue influence. The Court will be interested in whether the terms of the will are suspicious and evidence from the preparer of the will as well as evidence from family and close friends regarding the circumstances in which the will was made.

What evidence will be relevant in undue influence cases?

The burden of proof in undue influence cases lies on the person who claims that the will-maker was subject to undue influence. Usually there will not be direct evidence that the will-maker was pressured into signing the will. Therefore the Court will look at all the circumstances surrounding the signing of the will.

Relevant evidence will include whether the will-maker was suffering from illness, pain, physical weakness or mental deterioration (falling short of testamentary incapacity) which made her or him more vulnerable to pressure or coercion in deciding the terms of her or his last will.

Relevant evidence will also include whether the will-maker was dependent upon the person influencing the will-maker for legal, business, social, medical or domestic help. If the will-maker was vulnerable to exploitation for any reason then the reasons for that vulnerability will be relevant.

What happens when the will favours the person who prepared the will for the will-maker?

The fact that a will favours the person who prepared it can affect whether the will is valid or not and is generally regarded as suspicious. However the fact that a will favours the person who prepared it does not automatically make the will invalid. It all depends upon the circumstances.

Instead, the person who prepared the will has the onus of showing that:

  • the will-maker fully understood what he or she was doing; and
  • the will really does express what the will-maker really wanted.