The Court of Appeal has recently declared two Wills invalid because of the presence of undue influence when the Wills were created.

A Will-maker made changes to her Will immediately following the death of her son. At that time, the Will-maker’s daughter made comments that she and her husband were also making changes to their own Wills in response to the death of the son.

Pressure from the Will-maker’s daughter resulted in a second and third Will being created. These changes meant that the daughter and her side of the family received 93.75% of the estate, while the deceased son’s children received 6.25%.

When the Will-maker passed, her son’s two children brought a claim to the Court of Appeal alleging that their grandmother had been unduly influenced by the daughter to sign both the second and third Wills.

Undue influence is a ground for the Court to declare a Will invalid. Undue influence may be found if the influence of another led the Will-maker to creating or altering the Will.

The Court emphasised that pressure of any kind may amount to undue influence if it is overbearing on the Will-maker’s free will.

Prior to her death, the grandmother had stated that she had been “bullied” by her daughter to make the second Will. The Court accepted that this statement was true, given evidence relating to the Will-maker’s relationship with her family, the fact she would not have brought it up as a joke, and her emotional reliance on her daughter.

The Court accepted that it was “more probable than not” that the second Will was a result of undue influence by the Will-maker’s daughter. However, this did not automatically mean that the third Will was a result of undue influence.

When dealing with the third Will, the Court found that there were several procedural defects, including that the Will-maker’s daughter provided the Will-maker with the Will and witnessed it being signed. The Court also accepted that there was a lack of independent legal advice given to the Will-maker before the third Will was executed.

Evidence also showed that a provision leaving the residue of the Will-maker’s estate to her son-in-law was an unusual provision, as there is no direct blood relationship between him and the Will-maker.

The Court decided that the Will-maker was unduly influenced by her daughter when the third Will was executed.

The Court decided that the Will-maker was under undue influence because there were only four months between the second and third Wills being executed, the Will-maker complained of her daughter’s influence twice, and the daughter had significant involvement in the execution of the third Will.

The Court declared that both the second and third Wills were invalid. The Court declared that the original Will was to be enforced, where the son’s children received 50% of the Will-maker’s estate, and the daughter and her family the other 50%.

It is important to get your Will right in order to avoid claims being made against your estate. If you feel you are being bullied, coerced, or having pressure put on you to do something in your Will you do not want to do, you should insist on getting independent legal advice. 

If you are confused about your Will it pays to seek advice from a professional with experience in the area.

 

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.

Shaun Cousins and Hunter Flanagan-Connors