When you write your Will, you can leave your estate to your choice of beneficiaries, however if someone is persuaded or pressured into leaving their money to a certain individual, a Will could be challenged in the courts.
There are a number of grounds on which a Will can be contested, including where undue influence has been exerted over the testator or person making the Will. This could be coercion, intimidation or manipulation that has led the testator to include someone in the Will.
Spotting undue influence
Undue influence exists where someone has exercised their power to overbear an individual who is making their Will. It may be difficult to know if this has happened, but if a Will contains a large and unexpected gift then you may be suspicious.
It can also be a warning if the Will was changed not long before death and the changes were unexpected and different to wishes they had previously expressed.
Where the person suspected of undue influence was a major presence in the deceased’s life before their death or the deceased was reliant on them at the time the Will was changed, this could be a warning sign, particularly if the deceased had been unwell or frail or otherwise overly susceptible to influence.
What to do if you think there has been undue influence in making a Will
If you believe that a loved one may have been exposed to undue influence which led them to changing or making a Will in someone’s favour, you should speak to a legal expert. While it can be difficult to prove undue influence, a contentious probate solicitor will be able to talk through your options with you. It is often possible to resolve matters without the need for a court hearing.
Proving undue influence in a Will
The level of influence required is more than simple persuasion. The court will consider whether it believes that the deceased would have made the gift, had the undue influence not occurred. Coercion is classed as being influence that overwhelms the testator’s wishes although it does not need to completely change their mind.
The mental state of the deceased at the time the Will was made or changed will be looked at, as well as their physical wellbeing and their dependence on the individual in question.
The court will consider whether it believes the Will to be what the testator wanted to happen or whether it follows someone else’s wishes. The facts of the case need to do more than show undue influence, they should be inconsistent with any other hypothesis. However, the court will accept that undue influence has been proved without direct evidence in some cases.
Where undue influence is proved, the court will state that the Will is invalid and the estate will either pass under the terms of an earlier valid Will or, where there is no other Will, under the Rules of Intestacy.
Time limit for claiming undue influence
It is important to consider whether you wish to make a claim as soon as possible. In some cases, the time limit for commencing action may be only six months from the date of the Grant of Probate.
If you have concerns about a Will, you are strongly recommended to talk to a solicitor. It is often possible to reach agreement without the need to prove a case in court.
If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at [email protected]