What is undue influence and how can it affect your Will?

Undue influence occurs when someone has physically or emotionally pressured the will-maker to execute a will that is against the will-maker’s wishes. If undue influence is a factor in a Will dispute, the question the Court needs to answer is whether the current Will is consistent with the true wishes of the will-maker.

People may attempt to persuade a will-maker to provide for them or give them more than they could be entitled to receive in a Will. A Will is likely to be affected by undue influence if:

• Undue influence led to the will-maker creating the Will; or
• Undue influence meant the will-maker was not exercising free will or making their own decisions when creating the Will.

If a Will is affected by undue influence, and is made invalid as a result, the will-maker’s previous Will applies, or the rules of intestacy apply, or if they had not made a previous Will the rules of intestacy apply.

Recently, the High Court was asked to consider whether a Will was valid after evidence was presented indicating the deceased will-maker had been under pressure from her daughter to change the Will.

The will-maker’s initial Will was written to treat her children equally and required her daughter to repay a significant loan. When making this Will, the lawyer ensured that the will-maker had mental capacity to do so as she was experiencing memory lapses and indecision at the time.

Months after this Will was signed, the will-maker returned to her lawyer with instructions that the Will should be changed to forgive the debt owed by the daughter.

The lawyer was concerned there was undue influence and noted that the will-maker seemed frightened, would not make eye contact or sit down, and avoided answering questions about why she was changing the Will. A new Will was not made at this time due to these concerns.

The will-maker eventually got a new lawyer and made a new Will a couple of years later, forgiving the debt.

When the new Will was made there were further signs indicating undue influence, including the fact the will-maker and her daughter were living together, the daughter made it difficult for the other children to visit the will-maker, and there were possible indications of elder abuse.

After two days of hearing, the daughter abandoned her argument that the later Will applied and agreed that probate should be granted for the earlier Will.

If you have concerns about writing a Will, or are concerned about the Will of a loved one, you should contact an experienced professional that can give you advice tailored to your circumstances.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.