Undue influence in Will-making occurs when a person coerces or pressures someone in a vulnerable position to make or amend a Will which fails to reflect the Will-maker (testator)’s true wishes. This usually happens where the testator is vulnerable or dependent on others. The Will-maker can be considered to be a vulnerable person if they are elderly, ill, unable to speak the language of the country they reside in and/or are dependent on others for support.
The remedy under this equitable doctrine is that a court can render the Will voidable. This means complainants (i.e. beneficiaries) challenging the Will or changes to it may apply to the New South Wales Supreme Court to set the Will set aside, or to reinstate a previous Will which favoured them.
It is worth noting that undue influence differs from the common law (judge-made law) doctrine of duress. The latter requires more direct threats, whereas the former aims to address more subtle forms of influence and exploitation of a relationship.
Undue influence can be shown in two ways:
- Actual; and
- Presumed.
Actual and Presumed Undue Influence
Actual undue influence occurs where a person is able to prove that another person in fact influenced the making of a Will. It requires evidence of coercion or pressure.
Presumed undue influence occurs in relationships that have an inherent potential for an imbalance of power. The most relevant categories in which the presumption typically arises in Will-making such as a parent and child relationship.
However, these categories are not closed. If the relationship is one where a dominant party had the power to exert influence over the disadvantaged party due to trust, confidence and dependence being vested in them, and the latter relied on the dominant party’s recommendations to their detriment, undue influence can be established.
It must also be shown that the dominant party knew of the influence they had over the weaker party, that the former greatly benefited from the Will/changes to it, and the court must be satisfied that the influence was to the extent that the Will cannot be said to reflect the testator’s true intentions.
Can I challenge a Will via undue influence even if I am not named in it?
The short answer is yes. A Will can be challenged by people either excluded from it, or by those named who feel their share is unfair.
How to Prove Undue Influence Has Occurred
To prove undue influence, the complainant must show:
- The Will assigned property in an unforeseen manner without obvious explanation;
- The Will-maker was dependent on or trusted the person who exerted influence;
- The Will-maker was vulnerable due to illness or frailty; and
- The person took advantage of the testator and benefited from the distribution of assets under the Will.
These factors can be hard to prove as the Will-maker is not alive to testify as to their reasons and motivations of the distribution of the estate.
The Court relies on credible witnesses to the relationship between the testator and the person of influence. One relevant factor courts Will often look at is whether the disadvantaged party attained independent advice (i.e. from a solicitor) before creating a Will or making changes to it, and if so, how long they had to consider that advice.
Rebutting the Presumption of Undue Influence
Once the presumption has been established by the complainant, the responding dominant party can rebut it by showing that:
- The Will-maker knew and understood what they were doing; and
- The Will-maker was acting independently of their influence.
What happens when Undue Influence is Proven?
When undue influence is proven, the Court will rule either the entirety of the Will or part of a Will to be invalid. This means that part of a Will where undue influence occurred, such as a gift to a specific person, can become invalid while the rest of the Will remains in force.
How the team at Burgess Thomson can help
Protecting the true wishes of your loved ones is crucial to underpin succession law in Australia. The experienced solicitors at Burgess Thomson can help navigate the process of challenging a Will which has been created under undue influence.
The team at Burgess Thomson has substantial expertise in Wills and Estates. With over 60 years’ combined experience, our solicitors successfully assist clients from start to finish with executing or challenging Wills. We are known for sound advice and our ability to comprehensively answer any questions in our area with utmost diligence.
If you wish to discuss your matter with our team, please do not hesitate to call our office on (02) 4929 5602 to arrange an appointment.