What to do if a Will has been written under undue influence?

 

 

 

Zoe Davis – Trainee Solicitor

When making a will, a person can leave their money, home and other assets to whomever they like. There is no requirement for them to leave it to their spouses, partners or children.

However, just because a person has made a will doesn’t mean that it cannot be challenged.

There are various ways to challenge a will, one being that the person making the will (the testator) was under some level of undue influence.

Undue influence claims that are successful require more than just influence over the testator, but they can happen.

What is undue influence?

Undue influence occurs when the testator of a will is so influenced by the control or power of another party that they feel they have no choice but to make or amend their will despite the will not reflecting their wishes.

Undue influence claims usually arise where the testator is being cared for by someone and struggles to cope without them, and that person persuades them to change their will, usually by verbal or physical threats.

How do I know if someone has been unduly influenced?

There are some key factors which suggest someone has been unduly influenced when making their will. Factors that are often considered in undue influence claims are:

  • Did a Solicitor draft the will?
  • Is there a will file (a file kept by solicitors with all notes and letters relating to the will drafting)?
  • If English wasn’t the testator’s first language, was there a translator present?
  • Is the testator blind?
  • Was a beneficiary present when the testator signed the will or gave instructions for the will?
  • Was the testator cared for solely by the beneficiary in question? Did they rely on that beneficiary?
  • Is there any evidence of abuse?
  • Is the will a complete departure from the testator’s wishes/previous wills?

What to do if you think your relative has been unduly influenced? 

If you have concerns that your relative was unduly influenced when making their will, you should contact a solicitor.

What will a solicitor do for you?

Once you have contacted a solicitor, they should request a copy of the will file from the solicitors who drafted the will.  They should also send a Larke v Nugus request to the solicitors requesting certain information from them such as who was present at the signing and where the signing took place.

If there are suspicions of abuse or mistreatment, the solicitor may advise you to get medical, social care and/or police records as well.

Once these have been reviewed, the solicitor may advise you to pursue a claim to challenge the will on grounds of undue influence.

What if I am successful?

If you are successful, the will would be held invalid and any previous wills would come into effect or alternatively, the intestacy rules (the rules of succession if there is no will) could apply.  It would therefore seem that it is only worth making a claim if you stand to benefit.  You should therefore make sure you are aware of what is in the testator’s previous wills or of the impact of the intestacy rules.

If you are concerned a relative has been unduly influenced into making their will, contact one of our experts Sheila Valand, click here to email Sheila , Jack Khurana click here to email Jack or Zoe Davis, click here to email Zoe.