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There are various ways in which a Will may be challenged on the grounds of the validity. This may include the deceased lacking testamentary capacity at the time of providing instructions for the Will and at execution.
Causes for concern
However, there are certain circumstances where a Will may excite the suspicion of the Court as to its terms. For example, where the party who assisted in its drafting or preparation substantially benefits under it. In Gill v Woodall (2010), where the Courts suspicions are excited it is for the person proving the Will to satisfy the court that the testator knew and approved the contents of the Will.
The effect of undue influence upon a testator places the burden of proving that the Will was executed under undue influence on the person who makes the allegation. This is generally a high threshold of establishing actual coercion, being force or duress. In the Parfitt v Lawless (1872) the Court found that there was no presumption or sufficient evidence of undue influence where the testatrix left her residuary Estate to a catholic priest who resided with her as her chaplain and confessor.
In Hall v Hall (1868) even a reprehensible placing of pressure on a testator will not always be undue influence so as to make a Will invalid. The Court held "to make a good Will a man must be a free agent". But all influences are not unlawful. In Wingrove v Wingrove (1885) the Court held that to establish the presence of undue influence it is not enough to establish that the person has the power to overbear the Will of the testator, it must be shown that the Will was the result of the exercise of that power.
Physical force, violence or threatened violence will fall into the category of undue influence, but the evidence is not always easily established. In Hall v Hall (1868) the court commented that a testator may be led but not driven.
In Deville Bichot (2013) the Court found that persuasion did exist, but actual coercion was not present, and the Will was upheld. In Bennett v Petit (2013) the Court determined the case by way of an assessment of want of knowledge and approval rather than undue influence.
Does persuasion count as undue influence?
This article was written by Catherine Loadman, Partner in the Contested Wills & Probate Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of November 2020.