What is Undue Influence on a Will-Maker

What is Undue Influence on a Will-Maker

Defining What Is Undue Influence in Probate Law

Undue influence is where a person makes a Will that is the product of coercion – that is – a will that is not the will that the testator would have made absent the coercion. In other words, a Will made against the testator’s free will.

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

Undue influence is often difficult to prove and the burden of proof rests on the person who alleges it. A person should seek legal advice if they suspect undue influence.

What Constitutes Undue Influence

Undue influence is where a person coerces another person into making a Will that they would not have otherwise made except for the coercion.

Examples may include:

  • Where a child places substantial verbal or emotional pressure on their elderly parent to change their Will to benefit the child.
  • Where a person pressures another person into make a Will through persistent verbal, physical or financial pressure.

Importance of identifying Undue Influence

Identifying and proving undue influence can be difficult as it usually occurs in private.

Undue influence is where a person is pressured into making a will against their free will. The coercion must be such that the Will that was made was not the Will that the person would have made except for the coercion.

Other influences such as flattery, persuasion, or even guilty-burdening by someone who is seeking a greater share of an estate does not necessarily constitute undue influence.

It is usually only after the testator dies, and the terms of the Will become known, that allegations of undue influence are made. It may be the case that the deceased changed their Will to benefit one particular child, or exclude a particular child. It is usually at this stage that the disappointed beneficiaries become aware that they have been partly or wholly disinherited.

Legal Framework for Undue Influence in NSW

Relevant legislation

The principle of undue influence derives from the common law – that is – from past cases, rather than through a particular piece of legislation.

However, allegations of undue influence are usually made in the context of challenging the validity of a Will. When a person challenges the validity of a Will, this may impact or delay probate, or the administration and distribution of the estate which are otherwise guided by the Probate and Administration Act 1898 (NSW) and in other respects, the Succession Act 2006 (NSW).

Distinction between undue influence and duress

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

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

Remedies for Undue Influence

Whole of Will invalid

Where a Court finds the whole of a Will to be the product of undue influence – the court must refuse probate of that Will.

If 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 estate assets would then be distributed in accordance with the terms of the earlier valid Will, or where there is no Will, under the rules of intestacy.

Therefore, where a Court finds that a testator has been unduly influenced, this can have a significant impact on the share of the estate the beneficiaries receive and the transfer of property.

Part of Will invalid

Where a Court finds only part of a Will was the product of undue influence – the Court will order that part of the Will is invalid and (subject to other claims or findings) will grant probate for the balance of the Will.


Where a person is successful in proving undue influence, that person may apply to the Court for a costs order requiring the estate to pay their legal costs.

Where a person is unsuccessful, the Court may order that the party must pay the legal costs of the estate and the other successful parties.

Preventing Undue Influence

Independent Legal advice

One way to minimise the risk of allegations of undue influence is to engage an experienced wills and estate lawyer to prepare your estate planning documents. An experienced wills and estate lawyer will be able to detect signs of undue influence and take steps to reduce its influence. An experienced wills and estates lawyer will be aware of what signs to look out for and how to resolve any suspicious influences or conduct.

Encouraging transparency and communication

Undue influence may occur where there is an imbalance of power between two parties. Any suspicions of undue influence should be raised early, and during the will-maker’s life – where possible.

In some cases, the will-maker has not realised that they have been the victim of undue influence and helping them understand what undue influence is – may lead them to seek legal advice and to prepare a new Will in the safety of a solicitor’s office, absent any undue influence.

If you suspect a loved-one may have been coerced into changing their Will, having a transparent conversation with them is a helpful way to potentially cure the undue influence if a new Will can be prepared which is free from undue influence.

Ensuring proper documentation

The person alleging undue influence must show that the Will, or part thereof, was the product of undue influence. In other words, that the Will that was made was not the Will that would have been made if the influence had not existed.

The person will be required to rely on evidence to prove their claim. Evidence may include documentary evidence (solicitor file notes, the will itself, text messages, letters and emails), oral evidence (such as affidavits, statutory declarations, or in-court evidence) and in some cases video evidence, where for instance, someone has made a video of the testator, with or sometimes without, their knowledge and consent.

The person alleging undue influence (which depending on the proceedings could be the plaintiff or the defendant) 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.

Identifying Elements of Undue Influence in Different Contexts: Presumed Undue Influence, Actual Undue Influence, a Presumption, Special Relationship – What does it all mean?

The concept of undue influence arises in both contract law and probate law – however, each is quite different and should not be confused.

Undue Influence in Contract Law

In the context of contract law – undue influence is an equitable doctrine that involves one party to a contract or agreement exerting dominance or undue pressure over a weaker party – such that the contract is deemed to be voidable and unenforceable.

Undue influence involves the overriding of a party’s free will when entering a contract and is an equitable claim.

Actual undue influence occurs when there is no special relationship between the parties but there is evidence that upon entering a contract a dominant party exerts power or unduly exercised influence over another party’s decision, and because of that dominant party’s influence exerted over the weaker party, the weaker party has entered the agreement against their free will, such that consent was not given freely or voluntarily for the transaction. Actual undue influence may arise where one party receives a threat from an unknown third-party, for example, as it is ultimately a form of power over another party in order to gain benefit. The Court will look at the quality of the consent.

In other cases, the relationship itself may create a presumption of undue influence. A presumption of undue influence may arise where because of certain types of special or unique relationships or a position of power gives rise to a presumption that the party with more power (the dominant party) has exerted undue influence on a weaker party (the innocent party). Where these types of relationships exist, it is presumed that the dominant party may exert undue influence over the weaker party to their detriment, thereby taking advantage of them.

Equity recognises a presumption of undue influence in relationships of trust and confidence such as solicitor and client, doctor and patient, religious leader and follower, and trustee and beneficiary.

Where undue influence is established – the contract is deemed to be voidable and unenforceable.

Where the parties to a contract have the same bargaining power – the doctrine of undue influence is less likely to arise.

Undue Influence in Probate Law

In the context of Probate Law – undue influence refers to where a person makes a Will that is the product of coercion – that is – a will that is not the will that the testator would have made absent the illegitimate pressure. In other words, a Will made against the testator’s free will.

A Will, or part thereof, that is the product of undue influence is invalid and the Court will not grant probate for that Will, or part of the Will that is the product of undue influence.

The presumptions arising from special relationships that apply under the doctrine of contract law, do not apply in probate law.

How a Lawyer Can Assist with Different Types of Undue Influence Cases

Whether you suspect undue influence or are under suspicion for undue influence, it’s important you seek advice from an experienced wills and estate lawyer. Contact Empower Wills and Estate Lawyers today for a free initial consultation.

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