A Will is only valid in the UK if it complies with specific formalities. The vast majority of Wills that have been drafted by a qualified solicitor will have been executed in the correct manner and therefore valid, however there may be certain circumstances that invalidate a Will.
Undue influence
One of the ways of challenging the validity of a Will is by making a claim of undue influence, in short this is where a testator (the person who has made the Will) has been coerced by somebody into making a Will they didn’t truly wish to make. If there is evidence to support the fact that a testator has been coerced or there is an element of undue influence, a Will may be considered as not substantially valid. An absolutely crucial factor in these types of claims is evidence. The following red flag scenarios, may assist in illustrating a scenario that could indicate Undue Influence;
- A sudden decision for a testator to change their Will in a drastic way, that is out of character for the testator and substantially different from wishes they have expressed in the past.
- The person now benefitting under the new or updated Will was not previously included, or if they were previously included, what they stood to inherit was a much smaller amount from an estate previously.
- The deceased was dependent on the new main beneficiary(s) when changes were made.
- The deceased was frail and vulnerable when the new Will was made and more likely to have been susceptible to forceful persuasion.
Difficulties in establishing Undue Influence
As facts and evidence are key, claims of these types run into difficulties as undue influence usually takes place behind closed doors by people in positions of trust such as partners, children, grandchildren, carers, and close friends.
Undue influence is more than just persuasion and case law has helpfully assisted in understanding where instances of undue influence may be found.
The historical case of Wingrove v Wingrove [1885] established the following in the context of probate;
“To be undue influence in the eye of the law there must be – to sum it up in one word – coercion”.
Examples of coercion include;
Physical violence, imprisonment, verbal bullying or “simply talking to a sick person who is seriously ill in such a way that that person may be induced, for quietness’ sake, to do anything”. i.e. persistent pressure that wears down a weak and fragile testator to the point where they just give in.
In Edwards v Edwards [2007] Coercion was summarised as;
‘pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense’.
Therefore, a further critical point to note is there must be coercion, persuasion alone is not enough.
Examples of behaviours that do not amount to undue influence, include appealing to the affections of the testator, for instance:
- Pestering until they give in, e.g. “You already know, I need some inheritance to pay off debts, please can you leave me something to help me out otherwise I could be made homeless”.
- Heavy persuasion, e.g. “If I don’t receive any inheritance from you, your grandchild will not get the education you always wanted”.
- Pulling on their heart strings, e.g. “I am the only person that has supported you over all of these years”.
- Pampering or befriending an elderly testator with a view to be included in their Will.
Analysis of caselaw
In the case of Hubbard and another v Scott and others [2011], there were suspicious circumstances where an elderly father left his estate to his cleaner (whom he knew for less than 3 months) rather than his two daughters!, despite the circumstances, no undue influence was found. The facts of this case may be summarised as follow;
- The testator made his first will in 1997 leaving the whole of his net estate to a friend and neighbour, Dorothy Emblem providing she survived him by 30 days. In default, the Net Estate was left to his two daughters.
- Dorothy died in about 2008 and subsequently in 2009, the testator, aged 87 made a new will, executing it in the presence of a solicitor, leaving his net Estate, to his cleaner, Mrs Kruk.
- The two daughters alleged that Mrs Kruk and the testator met for the first time approximately two-and-a-half months before his death and that she was only ever his cleaner.
- It was also the daughter’s position that there was no reason why their father would have left his net Estate to the cleaner and not to family members.
- The daughters placed great reliance upon Mrs Kruk’s conduct after the death, as she concealed the fact of his death and the place and time of his funeral from his friends.
- In the daughters’ opinion Mrs Kruk, who came from a poor background was only ever interested in the testator’s money.
- The Judge accepted that Mrs Kruk was less interested in the testator after his death. It was evident that Mrs Kruk was fond of the testator and described him as being “a good man”, however, this was the limit of her affection.
Whilst the Judge found the circumstances may have been suspicious, the facts did not amount to undue influence. There was no evidence that Mrs Kruk’s conduct overbore the testator’s will as to induce him to make a will against his wishes. It was concluded that as the testator was elderly and lonely due to the daughters’ visiting him infrequently and this was simply a case that the testator had no one else to whom he wanted to leave his Estate.
Conversely, in the case of Schrader v Schrader [2013] it was held that there was an element of undue influence and in acknowledging the difficulty in evidencing such claims Judge Mann stated;
“It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop it being proved. The proof has to come, if at all, from more circumstantial evidence.”
The facts of this case may be summarised as follow;
- The testator died aged 98 and had made a will in 1990 that roughly divided her estate between her two sons Bill and Nick.
- In 2006, aged 96, she decided to make a new will that favoured Nick far more than Bill, when the new will was made Nick was living with his mother as her carer.
- Bill challenged the new will on a number of grounds, one of which was that Nick had unduly influenced his mother into making the 2006 will against her wishes.
- The testator was in a vulnerable position and dependant on Nick for her care.
- When she made her new will she decided to leave her home (the most valuable asset in her estate) to Nick.
- A will writer was engaged having had no prior contact with the family and the reason given by the will writer for the departure from the earlier will was inaccurate.
- There was no apparent reason why the testator decided to change her previous will and leave her house to Nick.
- Nick was described as a “forceful man with a forceful presence”.
- Nick was involved in the making of the new will but sought to distance himself from this fact when giving evidence.
- Nick held a view that his parents had not treated him equally to Bill.
- Nick had not disclosed the later will until steps were taken to prove the 1990 will and whilst he was clearly aware of the 2006 will, his initial unwillingness to disclose the same raised suspicions regarding the circumstances under which the new will was drawn up.
A combination of factors led the Court to believe that Nick had effectively sowed the seed in his mother’s mind that he should receive the house, in doing this he had effectively unduly influenced his mother, therefore the Court pronounced in favour of the 1990 will. This case illustrates that the Court was willing to depart from the usual evidential requirement and the judge was willing to find that there was undue influence without direct evidence of coercion.
It could be argued that this case may pave the way forward for an increase in undue influence claims given the fact that the Court had inferred undue influence, it is very relevant however that Nick’s forceful personality and his conduct in providing evidence influenced the Court in its conclusion.
For any potential claimants seeking to plead undue influence, it cannot be denied that strong evidence whether direct or indirect is absolutely crucial in succeeding in such claims. The majority of caselaw on undue influence illustrates such claims are not easy to prove, as a Court may agree that a testator has been influenced in changing a will, whether that influence was undue is a deciding factor, whilst circumstances may appear suspicious, the outcome of each case is very much dependant on its individual facts and circumstances.
If you would like to discuss a concern regarding the validity of a will feel free to contact me to arrange a free, no obligation chat on rehana.ali@cognitivelaw.co.uk or call me on 01273 284250.