‘Particulars which are consistent only with the opportunity to influence a testator or testatrix are insufficient. Undue influence will not be presumed’.
Undue Influence is a common argument used when trying to prove that a Will is invalid. This being that the deceased acted under the influence or pressure exerted by another when writing their Will, thus the Will would be found to reflect the influencer’s wishes rather than the deceased’s and is invalidated. Sound Simple? If only.
The recent Victorian Supreme Court of Appeal case of Montalto v Sala has demonstrated the high burden of proof surrounding Undue Influence cases, and the importance of proving to the Court the elements of the allegation rather than asking the Court to draw influences or conclusions from demonstrated assumptions.
The applicant alleged that the deceased’s last Will was not valid, relying ultimately on the idea that she was unduly influenced at the time of writing. The primary judge struck out these further and better particulars and it was then on appeal.
The allegation was that the testatrix had acted under the influence and pressure of two adult sons, the applicant was a third adult son. The substance of the allegation was that the applicant had placed the deceased into respite care, only for one of the brothers to remove her so that she became under his ‘care and control’. The brothers refused to inform the applicant where his mother was being kept and it was alleged that during this period, the deceased’s final Will was procured.
The applicant’s argument followed that there was a reasonable inference to be drawn of Undue Influence. This being that the deceased’s Will was drawn when she was kept substantially isolated from him and was only in contact with her other two sons.
The Court of Appeal held that the primary judge was correct in striking out the further and better particulars relating to Undue Influence. This being that the applicant did nothing more than make allegations that permit the Court to draw inferences from circumstantial evidence. He did not raise any reasonable suspicion that the testatrix was coerced in any way.
The lesson is that circumstantial evidence is simply not enough. The test for Undue Influence in the probate jurisdiction is well settled. A challenger must show that the free will of the testator has been overborne by words and actions of the alleged wrong doer(s), to such an extent that the deceased’s freedom of testation has been taken away.
If you think you have a valid claim for Undue Influence, get in contact with Hentys Lawyers today and let us bring success to your claim. Unlike the situation in the case of Montalto v Sala, we aim to prove, not assume.
 Montalto v Sala  VSCA 240 (7 October 2016)