Identifying and proving undue influence in a will challenge can be difficult, as it usually occurs in private, and therefore, it is uncommon for disputes to proceed to a Court hearing on undue influence alone.

However, when an undue influence dispute does proceed to Court, the Court must consider a range of evidence before deciding whether the will in question was the last will of a free and capable testator and absent any undue influence.

What is Undue Influence?

Undue influence is where a person makes a will that is the product of coercion and against their free will. The will-maker (or testator) ends up producing a will they would not have made absent the coercion.

The fact that the testator acquiesces and agrees to do the will does not cure the preceding undue influence.

An example of undue influence is when a child places significant verbal or emotional pressure on an elderly or vulnerable parent to change their will to benefit the child to the exclusion of others. 

Key Principles of Undue Influence in Probate Law

Where a Court finds the whole of a will to be the product of undue influence, the Court will declare the will to be invalid. The Court will refuse to grant probate of an invalid will.

Where a will is found to be invalid, the Court will “pass over” the invalid will and grant probate for an earlier valid will, or if there is no earlier valid will, grant letters of administration to the estate’s administrator.

The presence of illegitimate coercion

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 free will.

The nature and extent of the illegitimate coercion 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.

A Will made against a person’s free will

Undue influence may result in a will containing wishes or directions contrary to the testator’s true intentions. This may occur whether a person has been pressured into making a will against their free will. 

For undue influence to have occurred, the coercion and pressure must be such that the resulting will was not the will that the person would have made except for the coercion.

It can often be difficult to prove the relationship between undue influence and the power over a person’s free will. Where only circumstantial evidence is relied upon, it will usually be insufficient to merely claim that a person had the opportunity to overpower the testator’s free will — instead, the person asserting the undue influence must show that the testator’s will was overridden and that the resulting will (or a part thereof) was the product of that coercion.

Forms of coercion

Undue influence and duress may both operate to invalidate a will.

Undue influence involves illegitimate pressure, whereas duress most often involves a direct threat.

Some examples of coercion resulting from undue influence may include:

• A child or spouse coercing a testator into preparing a new will, naming them as the sole or primary beneficiary, to the detriment of other beneficiaries named in previous wills.
• A named beneficiary applies coercion that prevents a testator from making a new will, which would name other new beneficiaries, resulting in a detriment to the beneficiaries the testator was intending to name in a new will.

Impact on the will

In NSW, when a person challenges the validity of a will, this may impact or delay probate or the administration and distribution of the estate and close attention is required to the provisions of the Probate and Administration Act 1898 (NSW) and the Succession Act 2006 (NSW) when a dispute arises. 

This is because a will that is found to be the product of undue influence will be declared invalid.

The Court’s findings as to the validity of wills can have a substantial effect on how a deceased estate is distributed, including the share of the estate each beneficiary is entitled to receive and how any property is transferred.

If a will is found to be invalid due to undue influence, the Court will ‘pass over’ the invalid will and grant probate for an earlier, valid will, or if there is no earlier, valid will, grant letters of administration to an administrator.

Gathering Evidence to Prove Undue Influence

When seeking to challenge a will on the grounds of undue influence, the person who brings the challenge has the onus of proving their case.

The onus of proof in will disputes – particularly in cases of undue influence, as these tend to happen in private – is complex and always depends on the facts and circumstances of each particular case.

Identifying relevant and available evidence

The success of a will challenge, including those concerning undue influence, will depend on the extent and quality of the evidence. Strong claims at law are at risk of failing if they are not supported by sufficient evidence.

An experienced estate lawyer is best positioned to guide you through the formal requirements of identifying relevant and probative evidence to support a claim. Evidence comes in many forms, including written evidence, testimonial evidence, physical evidence, expert evidence, records and information from third parties, digital and electronic evidence, medical evidence, and expert evidence.

Witness statements and oral evidence

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

Written evidence is usually given in an affidavit, whereas oral evidence is given from the witness box where a matter proceeds to a final Court hearing. 

Oral evidence may be given in response to questions asked by the person’s own lawyer, such as a request to elaborate on or clarify statements made in a previous affidavit. It can also include answers a person gives in response to questions posed by the other side’s lawyer, known as ‘cross-examination.’

Unlike written evidence, where a party has ‘control’ over what evidence they include in a written affidavit, oral evidence can be more challenging, as a witness may inadvertently give evidence that proves detrimental to a client’s case.

Expert evidence

Expert evidence is opinion-based evidence given by a person who has specialised knowledge on a subject based on their training, study, or professional experience.

In the case of undue influence in a wills challenge, an expert witness may be a geriatrician or the deceased’s personal medical practitioner, who can provide an opinion as to whether the testator’s testamentary capacity was vulnerable to undue influence at the time of making their will.

Documentary and circumstantial evidence

It is prudent to collect a wide range of document-based evidence when claiming undue influence. One of the most common forms of documentary evidence is an ‘affidavit,’ where a person writes out a first-person account of their memory of the events in support of their claim.  

Other forms of documentary evidence in undue influence claims can include wills, prior wills, solicitor file notes, the deceased’s letters, text messages, or emails, and file notes of any family members.

Onus of Proof in an Undue Influence Claim

A person who challenges a will on the grounds of undue influence has the onus to prove their case. They need to produce evidence establishing undue influence.

The burden of proof in relation to undue influence in succession law is complex, and it will depend on the facts and circumstances of each particular case.

The onus of proving undue influence rests on those who allege it, and it is often very difficult to establish. A person who alleges undue influence and is ultimately unsuccessful may be ordered to pay one or more of the other party’s costs.

Who can bring a claim of undue evidence?

A person’s eligibility to challenge a will on the grounds of undue influence depends on the facts and circumstances. Often, it will depend on the allegations and their relationship to the deceased.

Possible claimants may include:

• A person who is named as a beneficiary in an earlier will who suspects a subsequent will has been prepared under undue influence or coercion.
• A person who is named as a beneficiary in an earlier will who has learned that they have been left out of a subsequent will.
• A person who is named as a beneficiary in an earlier will who has had their benefit reduced in a subsequent will.

The eligibility and strength of a claim will always depend on the facts and circumstances of each case.

Strategies for Proving Undue Influence

An experienced wills and estate lawyer is best placed to strategise the various ways to go about proving undue influence when challenging a will. 

Engaging expert legal counsel

If you suspect undue influence in the will of a loved one or a recently deceased loved one, it is important to engage expert legal counsel as soon as possible, as they will be able to explore the options available to you, and how evidence and circumstances may be able to support your case.

Formulating case theory

An experienced wills and estate lawyer will formulate a case theory for your undue influence claim. This is typically composed of two elements. The first is the legal theory, which brings together the essential components of the relevant state law and common law to advance a client’s case. The second is the factual theory, which is the factual matters which need to be proven to establish the client’s case effectively. 

A lawyer is tasked with developing a thorough case theory and, to do so, must possess an intricate knowledge of the factual matrix and the basis for the competing claims of fact and law between the two sides. 

Addressing potential weaknesses in an opponent’s case

It is the duty of your lawyer to scrutinise any potential weaknesses in the opposing side’s case. Examples of potential weaknesses may include if the will was prepared by a family member rather than a lawyer, if the witnesses to the will have since died, or if there is evidence indicating the exploitation of a vulnerable or feeble testator.

If you suspect a family member has been the victim of undue influence in relation to their will, contact Empower Wills and Estate Lawyers for a free consultation. 

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. 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 and objectives.