How to ensure a will is valid and avoid disputes- Part 3
The mini-series continues with this third instalment regarding the validity of wills. In part one we looked at testamentary capacity and in part two we discussed whether the testator knows and approves of the contents of the will. The final two parts of the series look at other ways in which a will may be found to be invalid.
These ways are, in practice, considered more difficult due to the need to assert, plead and prove, with convincing evidence, undue influence and fraudulent calumny (to be looked at in part 4) so as to render a will to be invalid. These grounds are treated akin to fraud and, if they are too lightly invoked, the consequences could be costly and could even result in a conduct issue being brought against their lawyer.
Undue influence in respect of wills… the curse of the Svengali
In part one I detailed that the solicitor writing the will would likely insist that instructions are taken from the testator in the absence of third parties, and in particular those with any sway over the testator.
Unlike some gifts made during a lifetime, there is no presumption of undue influence (coercion) to create a will in a certain way. A finding of undue influence at the time the will is signed would be based upon strong evidence. The person who asserts undue influence must be the one to prove it. When doing so, they must demonstrate that the facts are not only consistent with a case of undue influence, but that those facts are also inconsistent with any other possible explanations.
Undue influence is where the testator’s free will is overcome by coercion or fraud. Coercion is pressure or bullying that overpowers the free will of the testator. Their powers of reason and judgement are so overcome they are bypassed completely. To claim undue influence, it must be proven that such coercion was exercised in relation to the creation of the will, and not just that the alleged undue influencer had the ability to influence in such a manner. Coercion is not the same as persuasion, appeals to affection or a sense of charity, pity or reminding the testator of past kindness or services. Coercion may range from actual violence or threats, all the way down the scale to nagging pressure to which the testator succumbs to achieve a quiet life.
The physical and mental strength of the individual testator are relevant factors in determining how much pressure amounts to coercion. An elderly or sick testator could be more susceptible to a light but persistent barrage of coercion posing as persuasion. On the flip side, it is arguable that consideration should also be had as to the personal attributes of the person against whom the allegation of undue influence is made. This is particularly so if the person is imposing, intimidating and forceful in terms of mental and physical powers, and if they are aggressive. The supposed influencer may also be in a position of power over the testator, such as being able to decide whether or not to provide care for an elderly or sick testator.
The determining factor is whether or not the court considers that the testator made their will freely rather than if the terms of the will were fair.
Undue influence may be found by a court by when drawing inferences from all of the circumstances of the case, even where there appears to be no direct evidence.
In part four, the final part of this mini-series, we’ll take a look at fraudulent calumny.
If you want to challenge the validity of a will, or to defend such a challenge, please contact me directly via angelo.micciche@GAsolicitors.com or call 01752 203500.
If you want to make a will, please call GA’s wills, trusts and probate department on 01752 203500.
Angelo Micciche, solicitor, contentious probate