When a close relative or friend dies, finding out they did not include you in their Will can be difficult to comprehend. This situation is made worse when you discover the person they have left their assets to is someone that you don’t believe to be trustworthy or deserving of the estate.
Depending on the situation surrounding their loved one’s death, relatives may suspect that the deceased person was taken advantage of when writing their last Will and Testament. In extreme cases, the extent of manipulation can amount to undue influence, which can be taken to court, where the will can be challenged.
WHAT IS UNDUE INFLUENCE?
In Estate Law, “undue influence” occurs when the influencer convinces a person to favour them in their Will, to the detriment of others. This will most often occur in cases when the testator is vulnerable in some way and particularly dependent on others, for example, someone who is elderly or ill.
Often a suspicious Estate Plan will not be uncovered until after the person has died, as the influencer tends to keep last-minute Will changes under the radar.
However, it may not be too late. Defrauding or stealing from a vulnerable person is a form of abuse and should not be tolerated. If you believe that a deceased relative fell victim to a manipulative person before their death, which resulted in that person benefiting from their will, there are steps that can be taken to resolve the situation.
UNDUE INFLUENCE: THE COURT PROCESS
Someone who suspects undue influence must contest the will in court after the death of the testator. It is the responsibility of the complainant to prove that the will was written under undue influence. In order to do that, the person must prove that:
- The will leaves property in a way that wouldn’t normally be expected under the circumstances. For example if close family members were left out in favour of others without an obvious explanation.
- The testator was particularly dependent on, or trusted, the person who exerted influence.
- The testator was susceptible to undue influence as a result of illness or frailty.
- The influencer took advantage of the will-maker and benefited from the distribution of assets that were outlined in the will.
PROVING UNDUE INFLUENCE
Undue influence cases can be particularly difficult to win because the person who made the will cannot come to court and testify about his or her reasoning and motivations for distributing their assets the way that they did. In proving undue influence, the court must therefore rely on other witnesses who knew the will-maker well such as doctors or healthcare providers, family members, caregivers, and lawyers or other advisers. These witnesses may be called to testify about their knowledge of the relationship between the deceased and the person accused of exerting undue influence.
CASE STUDY: EDWARDS V EDWARDS AND OTHERS; CHD 
In order for undue influence to be argued, coercion of the testator must have taken place. Coercion may take several different formats such as physical violence or verbal bullying. In the case of Edwards v Edwards  a son of the deceased alleged that his brother had used undue influence over their mother to persuade her to change her will to exclude him from it. The court ruled that the child had deliberately poisoned her mother’s mind to sway the will in his own favour by deliberately telling her incorrect information. It was ruled that this amounted to undue influence.
The key question to be determined in cases such as these is as to whether the conduct of the accused over-powers the will of the testator. In this case the judge determined that it was, and the brother who disputed the will won the case. However it’s important to remember that ‘undue influnce’ can be difficult to prove, and the Court may not rule in your favour.
CASE STUDY: HUBBARD AND ANOTHER V SCOTT AND OTHERS 
In the case of Hubbard and another v Scott and others , the testator executed his will in the presence of a solicitor, leaving his net Estate to his cleaner, Mrs Kruk. The deceased’s two daughters challenged the will, alleging that Mrs Kruk and the testator met not long before his death and that she was only ever his cleaner so there was no reason why their father would have left his net Estate to her instead of family members. Furthermore, Mrs Kruk concealed the death and withheld details of the funeral from his friends. Whilst the Judge found that these circumstances were indeed suspicious, it was ruled that the facts did not amount to undue influence as there was no evidence that Mrs Kruk coerced the testator to make a will against his own wishes.
If you feel that your vulnerable relative was taken advantage of in the execution of their Will, Hentys can help you in disputing the will and achieving justice for them. Contact us now for more information.