When someone makes a valid will, it means they're considered to have the mental capacity to make decisions about what happens to their belongings and responsibilities after they die. This is called testamentary capacity.
A person's will should reflect their own choices and should not be influenced by others. If someone is pressured or manipulated into writing or changing a will under duress or undue influence, it can raise serious doubts about the validity of the will.
In this article, we'll explain what undue influence means concerning wills.
Table of Contents
- What is undue influence in wills?
- What are the signs of undue influence?
- How does undue influence affect the validity of a will?
- What counts as undue influence?
- What is fraudulent calumny?
- How to contest a will for undue influence
- When can a will be contested for undue influence after grant of probate?
- How to prove undue influence in a will
- How to avoid undue influence when making a will
- Is a will invalid if undue influence is proved?
- Alternatives to contesting a will because of undue influence
- How can Lawhive help?
What is undue influence in wills?
Undue influence in wills happens when someone is pressured or manipulated into making a will, or making changes to an existing one, they don't genuinely want to
For example, if an individual changes their will to leave their property or money to someone because they felt threatened or were misled by another person, that's considered undue influence as they might feel like they had no other choice but to do it.
What are the signs of undue influence?
Identifying signs of undue influence in a will isn't always straightforward. Some common indicators include:
Making sudden changes to a will
If a person has had the same will in place for a long time and has always been clear about who will inherit their assets, but then suddenly makes big changes to the will (like adding a new beneficiary who wasn't previously mentioned), this could be a sign of undue influence.
Similarly, if the changes seem out of character for the person, it could indicate that they're being pressured or coerced.
While last-minute or unexpected changes to a will don't necessarily mean that undue influence is involved, it could suggest external pressure is at play.
Becoming isolated from friends and family
If someone who has always been close to their family and friends suddenly starts to withdraw from those relationships, it could signal undue influence.
When a person becomes isolated from their loved ones, it's easier for someone else to control or influence them. This isolation may lead to decisions, like cutting certain family members out of a will, that the person wouldn't have made if they had their usual support network in place.
Overreliance on an influencer
When someone's health declines, they may understandably become more dependent on a friend, family member, or even a caregiver. While this reliance isn't in and of itself negative, if someone becomes entirely dependent on someone who is acting dishonestly, it can open the door to manipulation or control.
With wills, this may mean a vulnerable person who is overly reliant on someone may be manipulated into making changes they may not have done if they weren't ill or vulnerable at that time.
The presence of a potential influencer at the signing of a will
If an individual is pressuring someone to change their will for their benefit, they might make a point of being physically present at the signing of the will to exert their control over the testator.
While a new friend or companion's presence at the signing of a will doesn't 100% confirm undue influence, it may spark concerns if:
That person wasn't initially included in the will but suddenly becomes a beneficiary or
They were only initially expected to inherit a small portion of the estate but end up with a more significant share.
How does undue influence affect the validity of a will?
A will should reflect the genuine wishes of the person making it. However, if someone else coerces or pressures them into certain decisions, the will may not be considered valid in the eyes of the law. If a court finds evidence of undue influence, they could declare the will invalid.
What counts as undue influence?
Undue influence in a will can take different forms, including threats, extortion, or even physical harm. It can also be subtle, like persistent nagging or emotional manipulation.
Pressure tactics vary, ranging from emotional manipulation, where love or guilt is used as leverage, to more direct methods like threats or extortion.
Ultimately, the key factor is that the person making the will ends up acting on someone else's desires rather than their own. This undermines their freedom of choice, which is what undue influence aims to achieve.
What is fraudulent calumny?
Undue influence and fraudulent calumny often work together. Fraudulent calumny happens when false stories are spread about a person, leading them to leave that individual out of their will. It's a sneaky way of manipulating someone.
Imagine this: Someone spreads untrue, negative stories about a family member to an older person. Believing these lies, the older person changes their will to exclude that family member.
This sneaky behavior is based on lies and manipulation. It's unfair to pressure or trick someone into changing their will with false accusations.
How to contest a will for undue influence
If you believe a will was created under undue influence, you can take the matter to court and ask a judge to decide on its validity.
To contest a will for undue influence, you need evidence that the person writing the will was manipulated, threatened, or pressured into doing so or making changes to their existing will, against their wishes.
Evidence in these circumstances should show that someone used pressure, coercion, or threats to bring about the change in the will. It's not enough to say that a person had power over the testator; it's about proving that they unfairly used that power for their benefit.
If you have a strong suspicion of undue influence, contesting the will can directly address the situation. However, it's important to have solid evidence to increase your chances of success. Therefore, it's highly recommended to seek personalised help and advice from a wills, trust, and probate lawyer.
When can a will be contested for undue influence after grant of probate?
A will can be contested for undue influence either before, during, or after probate is applied for or granted.
While wills are generally considered final once probate is granted, if there's compelling evidence of undue pressure during its creation, it can be challenged. However, swift action and compelling proof is needed to be successful.
How to prove undue influence in a will
In the UK, proving undue influence in a will involves showing that the testator was compelled to make decisions against their better judgment or wishes.
The most direct way to prove undue influence is by demonstrating that the person making the well was under pressure. This evidence could include:
Letters;
Emails;
Test messages;
Witness statements confirming the presence of pressure.
Identifying and proving undue influence can be challenging because the law's position is to respect individual's decisions in their wills. Generally, mere allegations aren't sufficient, and concrete evidence must be presented in support of the claim.
How to avoid undue influence when making a will
To avoid undue influence when making a will, consider these tips:
Seek legal advice from an unbiased solicitor before making a will to ensure it's valid;
Make sure your decisions when writing a will are your own and not influenced by others;
Avoid having beneficiaries present during will creation or discussions, especially those who stand to benefit significantly;
If you're elderly or have health issues, consider getting your mental capacity tested to demonstrate sound judgment in decision-making;
Keep thorough records of all discussions related to the will, this can be useful if the validity is ever questioned;
Review and update your will frequently, especially after significant life events like divorce or marriage.
Is a will invalid if undue influence is proved?
If undue influence is proven, a court can invalidate a will. When someone creates a will under duress or threat, it doesn't truly represent their wishes. According to the law, a will should accurately reflect the maker's intentions.
If someone is coerced into making specific decisions, the will isn't genuine and may not be upheld. Instead, the assets of the deceased will be distributed as if there were no will at all or based on a previous will that is deemed to be valid.
Alternatives to contesting a will because of undue influence
If proving undue influence in a will isn't straightforward, there may be alternative ways to contest its validity. These include:
Fraud
Challenging a will on grounds of fraud involves proving that someone deceived the will-maker to benefit themselves. Will writing fraud occurs when someone manipulates the testator into making a decision they wouldn't have normally.
Lack of capacity
Contesting a will due to lack of capacity means showing that the person who wrote the will wasn't mentally capable enough. This could mean they didn't fully understand who their family members were or the extent of their assets.
How can Lawhive help?
If you suspect a will was influenced improperly, you should speak to a solicitor. A contentious probate lawyer can guide you on your legal options and advise you of your next steps.
At Lawhive, our network of wills, trust, and probate solicitors specialise in challenging wills and dealing with challenges to wills. While there's no time limit for contesting a will's validity, it's important to act swiftly.
Our experienced solicitors offer online, affordable legal support. If you need assistance or advice regarding a will challenge for undue influence, contact us for a no-obligation fixed-fee quote.