In a separate blog, we looked at the enforceability of a will and the circumstances in which its validity could be challenged. One such circumstance we briefly touched on was challenging a will due to undue influence, but what does it really mean? Understanding this is particularly important if you or someone you know is concerned about whether a loved one’s will truly reflects their wishes.

What is undue influence?

As individuals, we all have free will over the decisions and choices we make in life. A will is simply a legal document where a person, known as the testator, uses their free will to tell the world, or more specifically their close friends and family, what they want to happen to their possessions, including their finances, when they die.

However, as in life, although we generally act according to our free will, there are many instances where the people around us can innocently influence the decisions we make. This is natural. Family, friends and caregivers all have some degree of input in our lives. The same is true when it comes to choosing who will inherit money and possessions.

The law recognises that there is a line between normal influence and coercion. Coercion occurs when pressure from a third party is so overwhelming that the decisions made by the testator are not truly their own. In legal terms, in the law of England and Wales, this type of coercion is referred to as undue influence.

Put simply, undue influence is when someone overrides the testator’s free will, often subtly, sometimes overtly, so that the will no longer reflects what the person would genuinely have wanted if left to make their own decision.

How is undue influence proven?

1. What is the default position?

It is important to understand that there is no presumption of undue influence in the law of England and Wales. The starting point in any will dispute, or in relation to any specific gift in a will, is that the testator acted freely and voluntarily. Courts will assume that the will reflects the testator’s genuine wishes unless there is evidence to suggest otherwise.

This means that the burden of proof lies with the person challenging the will, rather than the executor or those administering the estate.

2. Who has the burden of proving undue influence?

It is important to understand that there is no presumption of undue influence in the law of England and Wales. The starting point in any will dispute, or for any specific gift in a will, is that the testator acted freely and voluntarily. Courts will assume that the will reflects the testator’s genuine wishes unless there is evidence to suggest otherwise.

Executors do not need to disprove undue influence; it is not their responsibility. Instead, the person making the allegation must gather evidence and demonstrate that coercion affected the testator’s decision. This can be challenging, as undue influence often leaves no direct proof and is frequently inferred from circumstances.

3. What factors will a court consider?

Courts do not rely on mere suspicion or family disagreements to establish undue influence. While the testator is no longer alive to give testimony, courts can infer coercion from patterns of behaviour, evidence, and circumstances surrounding the making of the will

Some of the factors that may be considered include:

• The vulnerability of the testator – including their physical health, age, or mental capacity. For example, a testator suffering from illness or cognitive decline may be more susceptible to undue influence.

• Dependence on a particular beneficiary – especially if the testator is financially, emotionally, or physically dependent on them, and isolated from friends or other family members.

• The level of involvement of a beneficiary in preparing or executing the will – for instance, if the beneficiary arranged the will, suggested changes, or was present during signing, it may indicate potential undue influence.

• Sudden or drastic changes to longstanding provisions – for example, a beneficiary being added or receiving a larger share without reasonable explanation can raise suspicion.

• Credibility of witnesses – including those who were present during the will’s signing, those who drafted it, or anyone aware of the testator’s intentions.

The Challenges of Succeeding with Undue Influence Arguments

The argument of undue influence has always been one of the most difficult grounds for challenging a will. Family suspicions, disagreements, or long-standing tensions are not enough on their own to convince a court that undue influence occurred.

The recent Court of Appeal decision in Rea v Rea [2024] EWCA Civ 169 highlights the high evidential threshold for proving undue influence. In this case, the High Court had previously ruled that undue influence must be more probable than any other explanation for changes to a will.

The court stressed that suspicion and family tension do not equal coercion. Anyone seeking to argue undue influence must be prepared with convincing evidence, often requiring careful investigation and expert input.

Despite the challenges, proving undue influence is not impossible. With the right advice, careful preparation, and a clear strategy, claimants can build a strong case, particularly where there is tangible evidence that the testator’s free will was overridden.

How we can help at Best Solicitors

At Best Solicitors, our contentious probate team works for both claimants and defendants. This includes executors, administrators, beneficiaries, or third parties who believe they should inherit, whether on the grounds that the will is invalid or that it fails to provide reasonable financial provision during probate.

We advise on all key elements of a claim, helping to:

• We can put together an effective case strategy.
• Identify the types of evidence that may assist in proving or defending undue influence.
• Assess the existence and accessibility of that evidence.
• Advise on the likelihood of success and potential risks in bringing or defending a claim.

We are also very conscious of the legal costs involved in contentious probate cases. We continuously review the risk against potential benefit, keeping our clients updated as cases progress and as evidence or circumstances change. This ensures clients are fully informed about the potential outcome without unnecessary financial exposure.