Contesting A Will Due To Undue Influence

Undue influence has traditionally been seen as being one of the more difficult grounds on which to contest a will. This is primarily because the burden of proof falls on the party alleging undue influence and because the primary witness, the testator, has passed away. Unlike lifetime transfers, where a substantial gift to a third party might trigger legal scrutiny and where in certain cases, the law presumed undue influence has occurred, in the case of wills it is necessary to prove actual undue influence.

In legal terms, mere persuasion or coercion is not enough to set aside a will; what is required is demonstrable pressure that overpowers the free will of the person making the will. A famous quote from the case of Hall v Hall [1868] LR1 P&D 481 captures this essence: “A testator may be led but not driven and his will must be the offspring of his own volition.”

Case study – Schrader v Schrader [2013] EWHC 466 (Ch)

A more recent case, Schrader v Schrade, illustrates the elements relevant to a finding of undue influence. Factors such as the individual’s vulnerability, dependency on a forceful family member, inaccurate reasons for changing the will, and a desire to “even things up” were crucial in the court’s finding that the will was invalid for undue influence.

Fraudulent calumny – poisoning of affections

Fraudulent calumny is a lesser known but significant form of undue influence. This occurs when someone influences another to include or exclude specific individuals from a will based on false information or lies. The leading case on this matter in which Hugh James acted for the successful claimant is Re Edwards [2007] EWHC 1119 (Ch), where the court found that the defendant had poisoned the affections of his mother, Winifred, and frightened her into making a will that favoured him in place of his brother, and our client, John. The court set aside the will on the basis of fraudulent calumny.

Conclusion

Whether through traditional undue influence or fraudulent calumny, recognising the signs and legal precedents can be instrumental in ensuring a fair and just resolution.

If you have concerns over a will or are facing a will dispute contact us to speak to one of our lawyers.

Key contact

Roman Kubiak TEP

Partner

Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.