Contesting a Will: Presumption of Undue Influence

One of the grounds for Contesting a Will is that the person who made the Will was subjected to undue influence.

Undue influence generally is where a stronger party has exerted pressure over a weaker party so to overpower their wishes. So ultimately, the plaintiff argues that the weaker party was either ‘forced, tricked or misled’ into parting with their property in the manner with which they did (Allcard v Skinner (1887)).

In terms of Will making, it is said that ‘for there to be undue influence in the eyes of the law there must be – to sum it up in one word – coercion’ (Wingrove v Wingrove [1885]).

Coercion when Contesting a Will

Coercion must take the form of domination; whereby domination by the defendant of the mind and will of the [testator] must be such that the ‘mind of the latter became a mere channel through which the wishes of the former flowed’ (Tufton v Sperni [1952]).  This being that the relationship between the parties must have gone beyond mere confidence of influence, there must have been a relationship involving dominion and ascendancy by the defendant over the other, and therefore correlation dependence by the other (Anderson v McPherson (No 2) [2012]).

Coercion can take several different formats. It can include, but is by no means limited to; physical violence, exploitation of mental or physical disability, verbal bullying or deliberate misleading.

In the case of Edwards v Edwards [2007], the testator’s son deliberately told his mother incorrect information so to secure an inheritance. This amounted to undue influence as it was a ‘deliberate poisoning of [the testator’s] mind’. Hence, the key question to be determined when contesting a Will is whether the conduct is so powerful that it ‘removes’ the will of the testator all together.

Presumptions of Undue Influence

In all cases involving undue influence, except those involving a Will, there may be a presumption of undue influence where there is a relationship of trust and confidence with the wrong-doer. Ie parent/child (Landashire Loans Ltd v Black [1934] 1 KB 380), solicitor and client (Westmelton (Vic) Pty Ltd v Archer & Shulman [1982]), doctor and patient (Bar – Mordecai v Hillston [2004] NSWCA 64); and, religious leader and follower (Allcard v Skinner (1887)). In these types of cases it will be for the wrong-doer to prove that the complainant entered the transaction out of his free will.

In Will contests, no such presumption exists. Instead, it is for the plaintiff in the proceedings to prove that actual undue influence occurred. However, actual cases of undue influence are uncommon and difficult to prove (Frederick v State of South Australia (2006)).

Such an allegation is usually successful only if it can be shown that there is no other hypothesis to explain the actions of the testator, other than undue influence (Edwards v Edwards [2007]).

Success Rate of Undue Influence Claims

Thus, the success rate of undue influence claims is very low and examples of such are few and far between. Moreover, suspicious circumstances surrounding the making of a Will alone, will not amount to undue influence. As a rule of thumb, there will only be undue influence if the statement ‘If the testator were alive, would he/she say ‘this is not my wish but I must do it?’ is answered in the positive.

Ultimately, as coercion is something that happens behind closed doors, with the key witness no longer alive so to give evidence, it is next to impossible to prove. In suspicious circumstances, it may be far easier to challenge the Wills on the grounds of testamentary capacity.

As you can see, contesting a Will is no walk in the park. Hence, we suggest that if it is something that you are considering, do get in touch with the team at Hentys Lawyers today.

Alternatively, if you have any queries, our Contesting a Will FAQs are a great place to start.