undue influence claim

Proving an Undue Influence claim – is it the ‘only’ reason?

In the case of Wharton v Bancroft (2011) EWHC (Ch) 3250, a deceased man’s daughters disputed their father’s will, on grounds including undue influence, lack of capacity and want of knowledge and approval. This case highlights the difficulty of proving an undue influence claim, as well as the potential consequences for losing a will dispute.

The Facts of Wharton v Bancroft

Mr Wharton knew he had terminal cancer. He had a partner of 32 years, Maureen Wharton. In 2008, upon the realisation that he was going to die soon, Mr Wharton decided to marry Maureen. He changed his will to leave his entire estate to Maureen, and subsequently married her.

Mr Wharton had three daughters: two from his first marriage and one from another relationship. He had a strained relationship with all of his daughters, often falling out of contact with them for years at a time. In the 2008 will, he left none of his estate to his three daughters, because he felt that they were “adequately provided for”. A wealthy man, Mr Wharton was the owner of a 99% stake hold in White Horse, a leisure company with caravan parks and other assets. The company was valued for probate purposes at £4 million.

Mr Wharton passed away three days after making the new will and marrying Maureen. His daughters challenged the will on the basis of an undue influence claim, that Maureen’s behaviour influenced how the will was drafted.

Reasoning of the Judgment

The judge, Mr Justice Norris, referred to the cases of Edwards v Edwards [2007] WTLR 1387 and Cowderoy v Cranfield [2011] EWHC 1616, to invoke the principle that when making an undue influence claim, the burden of proof lies with the claimant to prove that there is sufficient reason to suspect that undue influence might have taken place.  Also, whether there is “coercion”, or mere “persuasion”, depends on whether the testator has physical and mental strength, or conversely, vulnerability to being coerced. He continued, “an inference of undue influence should not be drawn unless the facts are inconsistent with any other hypothesis”. This is a high standard of proof. The judge decided,

“The fact that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken.”

It was not enough, therefore, for the daughters to prove that Mr Wharton was potentially vulnerable to being coerced; the judge would have to find that there was no other reasonable possibility than that Maureen had coerced Mr Wharton into signing the 2008 will.

The judge “unhesitatingly” held that the 2008 will was the valid last will of Mr Wharton. He stated that Maureen had been Mr Wharton’s partner for 32 years and that Mr Wharton had made the decision of his own volition to marry Maureen in his final days.

The “Golden Rule” in an undue influence claim

The case of Kenwood v Adams [1975] CLY 3591 established the “Golden Rule” that a deathbed will should be witnessed by a medical professional. This would reduce the risk of the testator being vulnerable to coercion. The judge in Wharton v Bancroft decided that criticism of the solicitor for not having ensured that a doctor was present at the signing of Mr Wharton’s will was “misplaced”. He continued:

“A solicitor… cannot simply conjure up a medical attendant… I certainly do not think that “the Golden Rule” has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.”

Therefore, while solicitors are encouraged, if possible, to bring a medical professional to the signing of a deathbed will, it is not a legal requirement in every case. In Wharton v Bancroft, the fact that the solicitor chose not to follow the Golden Rule was not enough to establish Wharton’s vulnerability to coercion.


Nearly 40 witnesses gave evidence throughout the hearing in Wharton v Bancroft. Having made the claim against the will under several grounds, and ensured that the trial would be exceedingly expensive by calling so many witnesses, Mr Wharton’s daughters found themselves at great loss as a result of their will dispute. The total of their own legal fees as well as Maureen Wharton’s fees, which they were subsequently ordered to pay, was close to £1 million.

Undue influence is difficult to prove. It is important when challenging a will for undue influence, to be certain that there is evidence, not only that the testator was potentially vulnerable to coercion, but also that coercion has taken place. Claimants might consider focusing on the undue influence, instead of making several different weak claims. This would mitigate the possibility of having to pay an enormous legal bill for an unsuccessful claim.

If you are considering an undue influence claim, it is important to take specialist legal advice from a solicitor specialising in this area of law. We offer an initial claim assessment for free. This will help you identify the issues and decide whether to take the matter further. Should you instruct us to bring your undue influence claim, we can usually do so on a ‘no win no fee‘ basis.