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.
The Court must be satisfied before probate is given that the testator (person making the will) knew and approved the contents of the Will at the time he signed it. In Barry v Butlin (1838) due execution of a Will in writing bearing the testator’s signature with two witnesses sets up the presumption in favour of the Testators knowledge and approval, provided the Will on its face is rational.
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?
More recently in Coles v Reynolds and Another (2020) the Court were reminded that persuasion does not amount to undue influence. The Court determined the deceased had given knowledge and approval of her Will and had not been unduly influence when favouring one daughter over the other. The deceased changed her Will on 23 May 2012 naming one daughter as sole beneficiary and executor. The Court did not accept the Claimants argument of suspicious circumstances relating to the Will preparation and found that the solicitor’s attendance note whereby the deceased had stated she was adamant she did not wish the Claimant to inherit as she had done nothing for her in recent years and no longer wanted to see her, whereas the Defendant daughter did everything for her. She clearly explained the reason for her wish to change her Will and depart from the previous terms. The Court dismissed all of the Claimants arguments including that the Claimant’s allegation of undue influence was not made out.
It is important to ensure that when you are making your will you do so in a legally secure way that will ensure your wishes are complied with after your death. Seeking expert advise is advised if you have any concerns.
If you require any assistance with the writing of your Will or wish to discuss a possible issue around a probate matter, please do not hesitate to contact our Private Client team or our ContentiousProbate Team for more information.
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.