NOTE: This article was published in July 2012 and reflects the law as it stands on the date of publication and not at any later date.
It is particularly difficult to set aside a Will on the grounds of undue influence. Undue influence will usually be difficult to establish for a number of reasons:
(a) there is no presumption of undue influence, as there is in the case of a lifetime transaction, which calls for explanation, between parties in a relationship of trust and confidence;
(b) the party alleging undue influence must prove that undue influence was actually exerted: motive and opportunity are in themselves insufficient;
(c) even if undue influence was brought to bear, it must be proved that the testator would not have executed the Will, if the undue influence had not been exerted
(d) it is not sufficient to prove influence or persuasion: the influence must be undue, amounting to coercion overbearing the will of the testator;
(e) there is normally no direct evidence that coercion was actually exercised, only a suspicion that it may have occurred; and
(f) there is normally an alternative, innocent explanation for the Will, consistent with the testator acting of their own free will.
Influence in the form of advice, suggestion or persuasion is not undue. The claimant must establish coercion (Gill v Woodall  EWHC B34 (Ch), at para. 489). Influence must have been brought to bear on the testator to make a Will that the testator did not wish to make.
In most cases, there will be no direct evidence of coercion. The person, alleged to have exercised undue influence, will not usually have left a letter behind threatening to break off all contact with the testator unless the testator leaves them everything.
It is, however, possible to establish a case of undue influence even where there is no direct evidence of coercion. Undue influence can be inferred from the surrounding circumstances. Such claims do occasionally succeed.
In Edwards v Edwards  WTLR 1387 the testatrix (T) made a Will in favour of one of her sons (S), excluding her other son, with whom she had a good relationship. Under her previous Will she had left her residuary estate equally between her two sons. T was frail and vulnerable. She was afraid of S, who was a heavy drinker. T made the Will at home, where she had been taken by S against medical advice. S prevented the other son from visiting. S, therefore, had the opportunity to influence his mother. He also had a motive: he was fearful of being evicted from the house where he lived with T. T had also made a number of surprising and false accusations against her other son. The only plausible explanation was that S had exercised undue influence over T by poisoning her mind against the other son. All other possible explanations were implausible. It was to be inferred that S had made deliberately untruthful accusations against his brother which had the effect that the testatrix’s judgment was overborne.
However, it is only in a rare case that it will be possible to infer coercion from circumstantial evidence. In Carapeto v Good  EHWC 640 the testatrix made a Will in favour of her housekeeper. The circumstances gave rise to a “legitimate suspicion” that undue influence may have been exercised. The housekeeper was present when instructions for the Will were given to the solicitor, and had probably arranged for the solicitor to be present. However, the Court rejected the claim of undue influence because the circumstances were “also consistent with a perfectly innocent explanation”, i.e. that the testatrix (who was an intelligent and independent woman) had genuinely wanted to benefit her housekeeper (who had lived with and cared for the testatrix for many years).
There have been three recent cases on undue influence and Wills.
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