When is influence ‘undue’?

8 December, 2020

A Will’s validity can be challenged if the testator was unduly influenced into making it. However, ‘undue influence’ can be distinguished from mere persuasion from those who are naturally interested in how the testator leaves their estate under their Will.

Mere Persuasion

A testator is free to leave their estate to whomever they choose, but friends and family members may have certain expectations about what they will inherit and they may seek to express these thoughts or feelings to the testator. They may appeal to family ties, make claims of financial hardship or even make claims as to the morality of including or excluding certain people from the Will. These forms of expression alone will not necessarily give rise to a claim for undue influence.

A testator may also, legitimately, be influenced to make or change their Will by external factors such as love, infatuation, or feelings of obligation to certain people. For example, the courts have previously rejected claims of undue influence where a testator has, quite happily, left their estate to someone they are infatuated with even when they have only known them for a short time.

Undue influence

The important distinction between legitimate influence and undue influence is whether the testator has been overpowered in such a way that their Will no longer reflects their own wishes. The line between legitimate and undue influence will depend on a number of factors, which can include the age, dependency and vulnerability of the testator.  It can include behaviours such as coercion, fraud and force, or even continuously wearing a testator down.

Not all influence is therefore ‘undue’ and persuasion is not in and of itself unlawful. However, if it can be shown that the testator’s volition and judgment have been overpowered by such influence or persuasion, this may give rise to a claim.

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