A will that is found to be the product of undue influence will be invalid.

What constitutes undue influence depends on the circumstances, but is usually used to describe illegitimate coercion.

The coercion does not require physical violence but does require the testator to be prevented from exercising a free will.

Coercion differs from other forces such as persuasion or influence, which unless they prevent the testator from exercising a free will, are not considered undue influence. In relation to persuasion, in Hall v Hall (1868) Sir J Wilde stated:

‘Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like…are all legitimate, and may be fairly pressed on a testator’.

The nature and extent of the pressure must be viewed in the context of the vulnerability and susceptibility of the individual testator and weak or enfeebled testator who succumbs to the constant pressure of a beneficiary and changes their will for the sake of peace, may constitute undue influence.

Undue Influence as Grounds for Challenging a Will in NSW

A will that is alleged to be the product of undue influence may be challenged on that basis.

Where a Court finds a will to be the product of undue influence, it will be invalid. Where the whole of the will is found to be invalid, the Court will refuse to grant probate for the invalid will and will instead, grant probate for an earlier valid will, and where there is no earlier valid will, grant letters of administration to an administrator.

Where a Court finds only a part of a will was the product of undue influence, that part will be invalid and the remainder of the will valid (subject to any other findings).

The Court’s findings as to the validity of wills can have a significant impact on how a deceased estate will be distributed and it is important to consider all potential outcomes when contemplating a challenge to a will on the ground of undue influence.

Common scenarios of undue influence

Whilst allegations of undue influence are common, it is not common for disputes to proceed to a Court hearing on undue influence alone. This is because most claims are not supported by the evidence capable of establishing undue influence.

An example of where allegations of undue influence may arise is where a person, perhaps a greedy child or second spouse, coerces a testator into preparing a new will naming the person as the sole or primary beneficiary. This may detriment the beneficiaries named in a prior will.

Another example involves where a named beneficiary applies coercion preventing a testator from making a new will, which would name other beneficiaries. This may detriment the beneficiaries who the testator was intending to name in a new will.

How courts determine undue influence

Where a person alleges undue influence and the dispute proceeds to Court, the Court will consider the evidence (both documentary and oral) relied on by all parties, before determining whether the will was the last will of a free and capable testator.

If the Court finds that the whole or any part of the will was a product of undue influence, the whole will, or that part, will be found to be invalid. The Court will not grant probate for an invalid will and will then consider whether the testator had an earlier valid will.

Proving Undue Influence in NSW

To establish undue influence, the person alleging it will need to prove that the testator was coerced into making the will, or part thereof, against their free will. The person alleging undue influence may rely on direct evidence and/or circumstantial evidence when proving their case.

The onus of proof

The onus of proof in undue influence cases rests upon the person who alleges it and it is often difficult to prove because the alleged conduct may have been done ‘behind closed doors’.

A person who alleges undue influence and is ultimately unsuccessful, may be ordered to pay one or more of the other party’s legal costs in defending the proceedings.

Required evidence and documentation

Evidence comes in many forms and includes documentary evidence (such as the will itself, other personal letters, solicitor file notes, text messages and emails), oral evidence (such as evidence in affidavits, statutory declarations or from the witness box), and in some cases video evidence (where someone has made a video of the testator, with or sometimes without, their knowledge and consent).

A person alleging undue influence may rely on direct evidence or circumstantial evidence, or a combination of both. Direct evidence of undue influence is not common, as undue influence in its nature, is something that ‘goes on when no-one is looking’: Schrader v Schrader [2013] WTLR 701. In most cases, a party alleging undue influence will rely on circumstantial evidence which presents a complex standard of proof in probate cases.

The standard of proof

Where a person relies on direct evidence, they must show that the testator’s will was overborne to the requisite degree by conduct proven in the direct evidence.

Where a person relies on circumstantial evidence, it is insufficient for them to prove that the person who allegedly coerced the testator had the opportunity to overpower the testator’s free will, but instead, the person must show that the testator’s will was overridden and that the will (or a part thereof) is the product of the coercion.

Witness testimonies and their role

If an allegation of undue influence proceeds to Court, the person alleging undue influence will need to prepare and rely on documentary evidence to prove their case. In most cases, they will also need to give evidence in Court and be cross-examined by one or more of an opposing party’s solicitors or barristers.

Legal Process to Challenge a Will

As each case is different, the first step is for a person to seek legal advice on the facts and circumstances of their particular case.

If the person has a claim, they may then put the executor and other beneficiaries on notice of their claim. An experienced lawyer will be able to assist with engaging in negotiations, mediation, or commencing Court proceedings as the particular case may require.

Most disputes can be resolved through negotiations.

Where a dispute cannot be resolved through negotiations, the person may commence legal proceedings for a Court determination.

Consultation with a legal expert

If you suspect a loved-one was coerced into making a will against their wishes, you should contact Empower Wills and Estate Lawyers today for free consultation.

Our lawyers are specialists in will disputes and can assist by assessing and advising on the strength of claims, negotiating, commence court proceedings, and representing you throughout the whole process.

Filing the challenge: time limits and procedures

A person alleging undue influence should seek legal advice immediately.

In appropriate cases, the person alleging undue influence will instruct their lawyer to put the executor and the beneficiaries on notice of the claim. It is important to put the executor on notice of a claim as soon as possible, to reduce the risk of the executor distributing the estate until the claim has been resolved.

The role of mediation in will disputes

Most disputes involving allegations of undue influence can be resolved through negotiations and mediation. The resolution of a dispute through negotiations and mediation is usually more cost effective and quicker than resolving disputes through court proceedings. However, the timing of any resolution will depend largely on the parties’ willingness to negotiate.

Only a small number of cases proceed to a final hearing on the grounds of undue influence.

Potential Outcomes

Where an allegation of undue influence is made and all the beneficiaries agree to resolve the dispute outside of Court, in most cases, they can agree amongst themselves for the estate to be distributed in a way that differs from the will, in effect, rewriting the terms of the deceased’s will.

When a matter proceeds to Court and the Court is satisfied that the will was a product of undue influence, the Court will find that will to be invalid.

Where the Court finds that only a part of the will is the product of undue influence, the Court will find that part of the will to be invalid, and the remainder of the will to be valid (subject to other claims).

What happens if the challenge is successful?

If the Court determines that the whole will was the product of undue influence, the Court will find that will to be invalid and will refuse to grant probate for that invalid will. The Court will then “pass-over” the invalid will, and instead grant probate for an earlier valid will, or where there is no earlier valid will, grant letters of administration to the estate’s legal representative.

The estate will then be distributed under the terms of the earlier valid will, or the rules of intestacy.

What happens if the challenge is unsuccessful?

Where a person who alleges undue influence is unsuccessful, subject to any other claims or issues, the Court will grant probate for the will and the estate will be distributed in accordance with the terms of that will.

The unsuccessful party may also be ordered to pay the legal costs of the successful parties including the estate. Costs orders can be significant and it is important to seek legal advice on the strength of any claim before Court proceedings are commenced.

Measures to Minimise the Risk of Undue Influence

The best way to reduce the risk of undue influence is for a testator to engage an experienced wills and estate lawyer to prepare their will.

An experienced wills and estate lawyer will be able to apply their experience in assessing whether there are any factors at play which may indicate undue influence and where possible, take steps to minimise any purported undue influence.

An experienced will and estate solicitor will also be able to provide wider estate planning services to best protect your estate from future claims, and advise you of other ways to potentially avoid your will being challenged.

Importance of Legal Advice in Challenging a Will

Challenging a will on the grounds of undue influence can be a complex process and if you lose, can be costly.
We recommend engaging an experienced wills and estate lawyer as soon as possible for advice and assistance.
Call Empower Wills and Estate Lawyers today for a free initial consultation.