What is undue influence?
When talking about Wills, undue influence is force or pressure placed on a Will-maker (“Testator”) which results in a Will that is not a result of the Testator’s free actions.
The undue influence must amount to coercion, importunity or force which overpowers the Testator. It must be more than persuasion or moral pressure.
Undue influence is:
[…]conduct that overbears the will of the testatrix [female Will-maker] so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will.[i]
Who has to prove it?
The person alleging undue influence has the job of proving its existence. The person putting forward the Will in question must show that the Testator had capacity and knew and approved the contents of the Will.
For undue influence to be proved, the Will must be established to be more likely than not to be the result of undue influence.
Undue influence is not presumed from the type of relationship between the Testator and the alleged influencer (such as parent and child, lawyer and client, teacher and student). Nor is it presumed because the Testator trusted and had confidence in the influencer.
How do you prove undue influence?
It is not only essential to prove that the particular person had the ability to unduly influence the Testator; it must also be proved that undue influence was exerted and that the Will (or part of it) was the result of such undue influence. Suspicion of undue influence is not enough.
The Court has said that:
The making of an allegation of undue influence is, of course, a serious allegation […] Such allegations should not be made unless they are based on evidence.[ii]
Proving undue influence can be very difficult and is not often successful in Court. This is because the main witness is the deceased and the other is the influencer. Circumstantial evidence, however, can be used to prove undue influence.
Essentially, what must be proved is that the Testator was forced into making his or her Will.
Undue influence can be shown by coercion from actual force or threats. A good explanation of evidence of coercion is as follows:
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.[iii]
What happens if proved?
If undue influence is proved in Court then the Will or parts of the Will obtained by undue influence can be set aside and held invalid.
What happens if not proved?
If the matter proceeds to Court and undue influence is not proved, then the Court may order that the party who alleges undue influence pay the other party’s costs. It will often depend on the strength of the claim and whether other grounds are alleged.
However, parties can come to an agreement before the matter goes to Court. Negotiations between the parties as to the distribution of the estate can prevent the need for formal proceedings.
Undue influence is just one of the grounds of proving the invalidity of a Will. If you suspect a Will may have been made because of undue influence or may be invalid for other reasons, then it is important you seek urgent legal advice. There are procedures available to stop a Will being proved as the last valid Will, but strict time limits apply.
[i] Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor  NSWCA 136, - per IPP JA.
[ii] Giarrusso v Veca & Michielin  VSCA 214 at  per McMillan J.
[iii] Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83 per Sir James Hannen P.