Under pressure – undue influence in Will drafting

It is important to ensure that a Will truly reflects the genuine intentions of the testator, rather than the desires of someone else. Undue influence is where a testator’s free will has been overridden by another person’s improper pressure. Where undue influence is proven, a Will (or part of it) may be declared invalid.

Legal definition and context

In the context of will drafting, undue influence occurs when a third party exerts such pressure on the testator that their freedom of choice is overborne. The law recognises that influence is often exerted in relationships but draws a line between legitimate persuasion and coercion. The influence must be such that it destroys the testator’s free agency.

Proving undue influence

One of the key difficulties in undue influence cases is the standard of proof. It must be established on the balance of probabilities that the testator was unduly influenced and made such changes to their Will due to that influence,  mere suspicion or unsubstantiated allegations are insufficient.

There is no automatic presumption of undue influence in Will drafting cases. Instead, those challenging a Will must provide evidence that:

1. The testator was susceptible to influence (e.g. due to age, illness, or dependency).

2. The alleged influencer had the opportunity to exercise influence.

3. There was actual coercion or manipulation.

4. The resulting Will (or part of it) reflects that undue influence, contrary to what the testator would otherwise have done.

Gathering such evidence is often challenging, particularly since the testator is deceased and direct evidence of coercion may be absent.

Indicators of undue influence

Common “red flags” that may support a claim of undue influence include:

• A sudden or significant change in the Will shortly before death.

• The exclusion of natural beneficiaries without a clear explanation.

• The inclusion of an individual in a position of power or dependency (such as a carer or family member).

• Isolation of the testator from other relatives or advisors.

• Lack of independent legal advice or involvement of a solicitor in unusual circumstances.

While none of these factors are determinative on their own, they may, taken together, support an inference of undue influence.

Consequences of a successful challenge

If a Will (or part of it) is found to have been made under undue influence, that portion is rendered invalid. The estate will then either pass under a previous valid Will or, if none exists,  rules of intestacy will apply.

The court may also consider severing the tainted part of the Will if the undue influence is limited to a specific bequest or clause, provided the rest of the Will can stand independently.

Conclusion

Undue influence in Will drafting remains a complex and sensitive area of law. While rare, its consequences can be far-reaching, leading to lengthy litigation and family disputes. The legal system balances the protection of vulnerable individuals against the importance of respecting testamentary freedom. Legacy officers must remain vigilant in identifying and addressing any circumstances that could give rise to such claims.

Whether your charity is looking for some assistance with a matter which has become contentious, or you are suspicious of any undue influence, our Contentious Probate team can help. Please contact Emma Facey who will be able to review any matters and provide guidance.