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What is Undue Influence in a claim against an Estate?
Fraser King  |  21/12/2020

Estate Litigation

The last will that was made by someone who has recently passed away must reflect their true intentions for where and how their property is to be distributed. In this context, undue influence can be a claim against a deceased person’s Estate when there has been pressure against the will-maker at the time the will was made. For an undue influence claim to be successful in court, that pressure must have coerced the will-maker to have made a different will than what they truly wanted.

In other words, would the will-maker have signed the resulting will if another person had not improperly pressured them in some way to do so.[1] However, not all influences or pressures on a will-maker will be considered undue, it depends upon the circumstances of the case.
The most frequent example of undue influence that we see is where a will-maker is heavily reliant or dependent on one person in their later years; and the will-maker is advised by that person what to do with their will or advised to take into consideration irrelevant factors. Successful claims for undue influence have varied from as much as physical abuse and violence against the will-maker to as little as failing to advise the will-maker other options may be available.

A court may also find undue influence is present even when the person placing pressure on the will-maker is not a beneficiary or stands nothing to gain by a change in the will.

What will a Court look for?

In order for a court to test whether a Will was made subject to undue influence a court will consider the following:[2]

1. The key question is whether, because of extraneous pressure from others, the will-maker has signed a will contrary to his or her own wishes.

2. Persuasion which has left the final choice to the will-maker is not undue influence. Where there is evidence of strong influence or pressure, the court will approach the question of the will-maker’s own wishes with suspicion. However, if satisfied that the will-maker’s own wishes have not been overborne, and that in the end he or she wanted the will in that form, the court must uphold the will. In those circumstances the ultimate source of the will is not the external pressures but the exercise of the will-maker’s own free judgment.

3. The onus of proof lies upon the proponent of undue influence. However direct evidence of undue influence is not to be expected. These cases usually turn upon the strength of the circumstantial evidence. The question is whether from all the surrounding circumstances, with particular emphasis upon the result of the will and the circumstances in which it was actually executed, undue influence is to be inferred.

4. For this purpose all circumstances bearing directly or indirectly upon the free will of the will-maker at the time of the execution are relevant. These include illness, pain and suffering, physical weakness and mental deterioration which falls short of testamentary incapacity. They also include any dependency a person has on others in legal, business, social, medical and/or domestic matters. One should view with special care any powerful need, obligation or vulnerability on the part of the deceased which others might be in a position to exploit.

5. However, it is not enough to show that others had the means and opportunity to unduly influence the deceased and that there has been a recent testamentary disposition in their favor. The court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.

In taking into consideration all of the points above a court will determine whether undue influence is present on the will-maker at the time the will was made.

What happens to the Will?

If a court finds that a will is the result of undue influence, the latest will is invalid and the court is to grant probate of the next most recent will, if one exists. If no previous will exists, then the laws of Intestate Estates will apply. How do I make a claim?

Claims can be made by beneficiaries who believe they have been ‘cut-out’ or disinherited from a will or any other person who fulfills the requirements set out in legislation (for example, children, grandchildren, parents, family members, charities, etc).

If probate of the will has not yet been granted you can lodge a caveat with the High Court preventing probate from being granted until your claim has been heard and the matter resolved. If probate has been granted then any claims must be made within 12 months of the date of probate being granted over the will.

As with any claim in court, there is risk that the court may not agree that there has been undue influence. Therefore, it is important to seek independent legal advice before you embark on such a claim; and this article should not be relied upon as legal advice.
McKenna King can advise you on the best way to protect your estate from a claim and/or how to bring a claim against an estate. If you would like advice on any matters regarding challenging or contesting an estate, please contact Fraser King and Rhiannon Scott to discuss your estate litigation matter.

[1] If you’re really interested in the legal stuff, the case Hall v Hall (1868) LR 1 P & D 481 (Prob) sets out a definition of undue influence as being “pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened”.

[2] Re Dudley (deceased) HC Auckland p1042/92, 14 May 1993 at 11 – 12.

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