Ben Parr-Ferris, Senior Litigator, Contentious Probate team of Healys, continues his series of articles explaining the different ways in which Wills and Probates are contested.
Undue influence happens where a beneficiary of a Will has coerced the testator to make the bequest to him. Whilst there are often accusations that a beneficiary has exercised undue influence, there are very few cases where undue influence is proved. There are however a lot more cases where the court finds that a Will is not valid because of “want of knowledge and approval” which in some cases is very similar.
To show undue influence it is necessary to show not just that there was influence but that it was “undue”. There is nothing wrong with a close relative or dependent seeking to influence a testator to leave a bequest – in most cases it is entirely natural for a request to be made for some property to be left to a particular person. The court will only interfere with the validity of a will on this ground if the influence was coercive meaning that the testator was left with no choice but to do what he was told. This might happen where there is a threat of physical violence or a threat to withdraw vital care.
Because behaviour of the type needed is often done in the privacy of the home, it is usually very difficult to obtain the evidence needed to prove undue influence. If there was a threat of violence, it is likely that only the beneficiary and the testator were there at the time. As the testator will usually have died by the time the will is being disputed, and the beneficiary has no interest in admitting what happened, it is unlikely that there will be enough evidence to prove undue influence.
The question of whether the testator had knowledge of and approved the Will is a different one, and this can succeed where there is insufficient evidence for undue influence.
In order for a Will to be valid, the testator must be shown to have known what the Will says and to have approved of it. The question of whether this is the case is asked in this way:
- The person saying there was no knowledge and approval has to show that there is some suspicion about the circumstances when the Will was written and executed
- If the court is satisfied that there were suspicious circumstances, the person who says that the will is valid has to show that the testator did have knowledge of and approve of the will so that the suspicion is dispelled. If the person seeking to rely on the Will cannot show this, it will not be valid.
The circumstances where the court’s suspicion may be aroused are wide. The following are some indicators that have been seen in past cases, but future cases may expand on these:
- The Will was made without the assistance of solicitors
- The Will is in language that the testator would not have used
- The Will contains untrue statements
- There is a significant and unexplained change in the way the testator has left his estate from what was said in an earlier Will
- The testator was not close to the beneficiary, or the beneficiary had acted against the interests of the testator
- The beneficiary was involved in making the Will including where the witnesses were linked to the beneficiary
If the court sees one or more of these factors, the beneficiary will have to prove that the Will is valid.
Want of knowledge and approval is in many cases a much easier way of challenging a Will than trying to prove undue influence, and cases where there has been undue influence Will often have many of the features that lead a court to be suspicious. Also, in some cases where there are reasons to suspect that the testator did not have testamentary capacity but there is insufficient evidence to prove that, it is often possible to “excite the suspicions” of the court as to whether the testator knew of and approved the Will.
Case Study Example
In a case handled by Healys, our client was executor of a will which left the majority of the estate of a family member to him. Another family member challenged the Will on the ground of want of knowledge and approval because he believed that the bequest to him was too small. He raised several points in an effort to show suspicion as to the circumstances in which the Will was executed. This included that the Will was drawn up by different solicitors from the testator’s previous solicitors and that our client lived with the testator at the time and had arranged the meetings with the solicitor. Healys took evidence to show that the change of solicitor was for good reasons, and that although the meetings with the solicitor were arranged by our client he took no part in the meetings themselves. After the evidence had been produced, the claim settled with the claimant receiving only a slightly increased bequest.
If you require any further information on this topic or the services we offer please contact Ben Parr-Ferris on 020 7822 4104 or email email@example.com.