Duress vs Undue Influence

Duress vs Undue Influence

Duress vs Undue Influence

For a will to be valid, it must be made by a person with sound mind, memory, and understanding, be the product of the person’s own free will, and be executed in accordance with the formal legal requirements of the relevant jurisdiction. A will made against the person’s wishes may not be valid. 

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What is Duress?

Duress means a threat of harm to compel a person to do something against his or her free will or judgement.

One such example of conduct that may constitute duress is where a child either physically assaults their parent or threatens their parent with physical harm unless they change their will to benefit the child. 

A will made under these circumstances would not be valid. 

In some cases, duress would constitute criminal conduct, and duress may result in criminal charges.

What is Undue Influence?

In the context of wills and estate law, ‘undue influence‘ means coercion.

An example of undue influence involves a child placing significant verbal or emotional pressure on an elderly or vulnerable parent to change their will to benefit the child. A will made under these circumstances may not be valid.  The fact that the testator acquiesces and agrees to do the will does not cure the preceding undue influence.

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

The coercion does not require physical violence, but the influence must be such that it operates to deprive a person of free will. 

The amount of pressure must be viewed in the context of the susceptibility of the testator (who may be in a weakened physical or mental state) who succumbs to ongoing pressure from a beneficiary or prospective beneficiary and changes their will for the sake of peace.

The doctrine of undue influence is also found in contract law, where terms such as actual undue influence, presumed undue influence, presumption of influence, nature of the transaction, presumption of undue influence, breach of contract, and reasonable alternative apply. In the context of contract law, where parties enter into a contract and undue influence is found or improper conduct is identified between the parties who signed the contract, the court may order the contract voidable. These principles do not apply in relation to undue influence in the context of succession law. 

Duress vs Undue Influence

Generally speaking, duress is considered more serious than undue influence and, if proven, is more likely to cast doubt over the validity of a will. 

Identifying Duress or Undue Influence

Although many people may suspect that a parent is being pressured by a family member to change their will, because the conduct often occurs in private or behind closed doors, there is rarely direct evidence of the pressure. More often than not, the person alleging duress or undue influence will have to rely on circumstantial evidence, which may fall short in establishing undue influence. 

Signs of Physical or Emotional Pressure

In the most serious of cases, there may be evidence of physical pressure, such as bruises or injuries.

In other cases, there may be signs of emotional pressure where an elderly or feeble person is more emotional than normal or different in their behaviour (i.e. withdraws into themselves). 

If the suspicions come to light while the testator is alive and they are able to communicate, they can be asked about their circumstances and give their side of the story. However, in many cases, the suspicions don’t crystallise until after the testator’s death, when the testator is no longer available to tell their side of the story. 

Manipulation of Vulnerable People

The increase in life expectancy and increase in the value of property have, in turn, increased the risk of manipulation of the old and vulnerable. 

Manipulation often occurs in private and without any witnesses. 

One way to potentially reduce the risk of manipulation as you age is to prepare a comprehensive estate plan consisting of a will, power of attorney document, and enduring guardianship form and appoint multiple trusted loved ones jointly to each of the relevant roles. This can offer protection during your lifetime and also help ensure your estate is distributed according to your wishes. Importantly, the appointment of multiple people to act jointly can reduce the risk of one person abusing a role.

Another option is to restructure your assets (such as into discretionary trusts) and appoint decision-makers to the roles during your lifetime. If control of the asset has been passed to someone else, this may reduce the risk of pressure being placed on you as you age. 

Unexpected Changes to Legal Documents

Other circumstances in which duress or undue influence may come to light are where there has been an unexpected change to legal documents.

For example, if a parent had previously appointed their children as attorneys and guardians but soon after meeting a new partner, appoints the new partner, suspicions may arise.

Similarly, if a parent left their estate to their children in multiple prior wills but soon after meeting a new partner, executes a new will leaving their entire estate to the new partner, this would rightfully raise the children’s suspicions.

Suspecting Undue Influence or Duress: What to Do

If you suspect someone has been the subject of undue influence or duress, you should contact a lawyer who can consider the circumstances, conduct further searches, provide advice, contact relevant people for their views, and if necessary, commence legal proceedings. 

Talk to a Wills and Estate Lawyer

An experienced estate lawyer is best placed to guide you through what evidence may be relied upon to support a claim.

Challenge the Document in Court

If a will is suspected to be the product of duress or undue influence, a disappointed beneficiary or interested person may be able to commence contested probate proceedings, which would result in the court examining the circumstances and making a determination in relation to the validity of the will. 

Gather Evidence for Your Case

The person who alleges undue influence has the onus of proving their case. 

The onus of proof in undue influence cases is complex, and it can often be very difficult to prove undue influence because of the inherent private nature of the undue influence that is alleged. 

The success of the case will depend on the extent and quality of the evidence.

Evidence to establish undue influence may include written evidence, testimonial evidence, physical evidence, records and information from third parties, digital and electronic evidence, medical evidence, and expert evidence.

A claim for undue influence is usually determined with reference to the strength of the evidence from witnesses, such as family and friends, who may give evidence in written and/or oral form.

Seek Court Intervention

Some allegations of undue influence can be resolved through negotiations, where, for instance, the parties agree to seek probate for the questionable last will, but they privately agree for the estate to be distributed in accordance with a previous will. 

However, if the parties cannot resolve the dispute amicably, either party may commence contested probate proceedings, where the court will consider the allegations of undue influence and make a determination as to the validity of the last will. 

A finding of undue influence will result in the court ordering that the will is not valid. 

Undue Influence and Unconscionable Conduct

Although not used in the context of estate law, unconscionable conduct is conduct not done in good conscience; sometimes conduct that is morally tainted. 

Legal Remedies for Duress and Undue Influence

If a court is satisfied that a will was the product of duress or undue influence, it will make orders that the will is not valid. 

Need legal Advice in Sydney? Contact Empower Wills and Estate Lawyers 

If you believe a loved one has been subjected to duress or undue influence or would like to know whether duress has taken place, definitions of duress, what conduct constitutes duress, requirements of duress, or whether conduct qualifies as duress, contact Empower Wills and Estate Lawyers in Sydney, NSW now on 1300 414 844 to discuss your situation with a solicitor from our team of experts.

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.

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