In a recent article we outlined legal issues regarding capacity to make a Will.
A different but related question that is arising more frequently is whether a deceased person who has legal capacity has been coerced into changing his or her Will late in life. This concern is especially relevant in cases involving will disputes and individuals who may have concerns that they have been left out of a will.
Most elderly people, whilst still having legal capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing.
In a case of Dickman v Holley, a will containing bequest in favour of the Salvation Army where a person from that organisation was involved in the will making process, was rejected for several reasons, including undue influence. Undue influence is more easily inferred if a bequest is in favour of a party in a special relationship, such as the Salvation Army in this case, or a person’s trusted adviser, like their doctor or lawyer.
More commonly, it is often family members are those influencing a will maker’s decisions, but when does this become undue influence or coercion? The current law states that the will maker must be overborne to the extent that they did not intend or desire to make their will in a particular manner to leave someone out of a will and were not coerced into making a will.
The current law is that the will maker must be overborne to the extent that they did not intend or desire to make their will in a particular fashion and will maker was coerced into making the will.
Cases suggest that coercion must involve pressure that “overpowers the volition of the will maker” as distinguished from “mere persuasion” or “appeals to ties of affection” or “pity for future destitution”, all of which appear to be legitimate. Social pressure by itself may not amount to undue influence, indicating a high bar to prove such claims.
However, pressure that causes the deceased to “succumb for the sake of a quiet life”, if carried on to the extent that “it overbears the will maker’s free judgment” may, in some circumstances, be regarded as coercion.
It can also be argued that the circumstances of the deceased may be relevant –what may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual.
The cases where wills are overturned for undue influence or coercion are few and far between. This is in part due to the cost for Court proceedings to dispute a Will’s validity and the onus of proof resting upon the persons making the allegation of undue influence.
However, given the additional wealth that is often involved in estates and the pressure that is being applied to some older people, disputes about undue influence are likely to be the subject of a family provision claims and will dispute issues where an individual has been left out of a will as a result of the undue influence and coercion.
Practice Pointers
- Make your will early: It is best to make one’s will before any uncertainty or confusion might cloud the mind, especially to avoid issues related to being left out of a will.
- Seek Professional Advice: Obtaining professional advice ensures that your wishes are clear and independently expressed, helping to prevent future will disputes from arising.
If you have any concerns about coercion or influencing factors in will-making, it may be wise to consult a will dispute lawyer at Matthews Folbigg to discuss your options and protect your interests
