Undue Influence – what will (and what won’t) be enough?

Considering the question of ‘undue influence’ in more detail

As we recently explained, proving undue influence when challenging a will can be difficult – but it’s not impossible. In this blog we look at some examples of circumstances where the courts have determined that undue influence was present – and also some examples of where it wasn’t.

Undue Influence – the principles

In our earlier blog about undue influence, we looked at the principles governing claims where ‘undue influence’ is said to make a will invalid. These were set out in the case of Edwards v Edwards. The fundamental points to prove are that the will

• does not reflect the true intentions of the testator (the person who made the will); and
• the reason for this is the behaviour of another person (although not necessarily someone who benefits under the will concerned).

Whether there has been undue influence will be a question of the facts in each case.

Vulnerability and constant telephone calls

So let’s look at the first of our case studies where the courts agreed that there had been undue influence which meant the testator’s will did not reflect her true intentions. In Schomberg v Taylor, the testator had made a will in 2005 in which she left most of her property to her stepsons. However, in 2008, she made a new will leaving most of her property to her nephews and only small gifts to her stepsons. In challenging the 2008 will on the grounds of undue influence,  the stepsons brought evidence that the nephews’ father had repeatedly telephoned Mrs Taylor asking her to change her will in favour of his sons. The phone calls had continued to such an extent that the testator asked her carer not to put his calls through to her. The court found that at the time of the phone calls, Mrs Taylor was vulnerable following the death of her husband. The court found that in the circumstances, given Mrs Taylor’s vulnerability and her wish to make the persistent telephone calls stop – she had bowed to pressure to make the new will which did not reflect her true wishes. There had been undue influence.

‘A forceful man with a forceful presence’

Another case where undue influence was successfully argued was Schrader v Schrader. In this case, the testator’s first will divided her property equally between her sons. This will was superseded by a later will which treated one son, Nick, more favourably than the other, giving him the house. At the time this new will was made, Nick was the testator’s sole carer and was known to be ‘a forceful man with a forceful presence’. The will writer engaged to draw up the will had had no contact with the family beforehand and the reason given to the will writer for giving the house to Nick was inaccurate. The court decided this was probably because Nick had given the reason, rather than the testator. The court also found no real reason why the testator should change her will in this way. In addition, there was evidence that Nick had felt that he had been unequally treated by his parents in the past. He had initially sought to cover up both the existence of the later will, and his role in drawing that will up, which the court felt suggested he himself had misgivings about the circumstances of the will. Taking all the facts together, the court found that Nick had unduly influenced the testator to leave him her house. The later will was invalid, and the earlier will which treated the brothers equally was declared to be the true will.

Although you may have suspicions that undue influence has been brought to bear, it’s important to remember that suspicions are not going to be enough to prove that there has been undue influence. You must be able to show that undue influence was brought to bear, and that this meant that the will did not reflect the true intentions of the testator. Just because a will appears to be ‘unfair’ does not of itself mean there has been undue influence.

Suspicious circumstances are not enough

Hubbard & another v Scott and others is another case where suspicious circumstances alone were not enough to lead to a conclusion of undue influence. The testator’s first will left his estate to a friend and neighbour, and if she did not survive him, then the estate was left to his daughters. When the neighbour died, the testator made a new will which left everything to his cleaner, Mrs Kruk. The daughters argued that there was no reason why their father should have suddenly decided to leave his family out of the will. They argued that he had only known Mrs Kruk for a couple of months before his death, and she had never been more than his cleaner – there was no closer relationship. They also raised concerns about Mrs Kruk’s behaviour after the testator’s death, concealing the fact of the death and the funeral arrangements from friends. All very suspicious – however, there was no evidence that Mrs Kruk had somehow pressurised the testator into making a will that left everything to her and the expense of his family. The judge found that the testator’s behaviour could simply be explained as that of a lonely, elderly man whose daughters visited him only infrequently, and there was no one else to whom he wanted to leave his estate.

Undue influence must be the only explanation

In Wharton v Bancroft & others the will concerned was drawn up within hours of the testator being discharged from hospital with terminal cancer. The will left everything to his long term partner, Maureen Wharton, who he then married an hour after executing the will. Not apparently suspicious, however, it had been the testator’s stated intention for a long time that his estate would be left to his 3 daughters, with his partner having a life interest. The testator had also been part funding his granddaughter’s education, and the will made no mention of this. Witness evidence from individuals who had nothing to gain from the will was that after leaving hospital but before drawing up the will, the testator had confirmed his intentions to leave property to his daughters. He also reassured one of the daughters that the granddaughter’s school fees would be taken care of. Further, the judge was not entirely convinced by the evidence of Mrs Wharton. However, despite all this suspicion, the judge did not feel able to find that there had been undue influence. He could not conclude that undue influence was the only explanation for the testator’s behaviour – rather the testator could simply have changed his mind and ‘put his house in order’ having decided to marry his partner of 32 years.

Expert advice is crucial

Hopefully, the examples above have given you a more practical idea of what will and won’t amount to undue influence. If you are worried about the circumstances in which a will was drawn up, your first step must be to take legal advice so that you understand the strengths and weaknesses of your case, what your options may be, and the possible outcomes of pursuing legal action. If you’re considering bringing a case to overturn a will because of undue influence, talk to us first!