Undue influence is the act of applying pressure on a person to coerce them, essentially overpowering the individual’s own will. In relation to wills this could be pressuring a person to include certain provisions in their will. This could be through outright threats to the testator, or by more subtle means.
As Estate Planning Practitioners we must be ever vigilant to the threat of unscrupulous individuals out to take advantage of vulnerable people and be certain that the wills we are drafting meet our client’s instructions, and that those instructions were freely given. It is a tragic fact that there are people out there willing to exert pressure on a testator to induce them to write a will in their favour. This article hopes to address what we should look out for and what can be done to prevent wills being produced as a result of undue influence.
Some background:
When challenging a will on the grounds of undue influence it is for the person who is alleging the undue influence to prove it. There are no presumptions of undue influence to assist when it comes to wills. Unlike with lifetime gifts there is no presumption that certain relationships place a person in a position of confidence and trust that enables them to exert undue pressure on the testator.
This is an area to keep an eye on as the Law Commission’s consultation paper on reforming the law of wills that was began in July 2017 brought this up as an area in need of change. In this paper it was suggested that a presumption is drawn up for wills similar to the presumption that applies to lifetime gifts. The Law Commission have suggested that there should be a presumption of a relationship of influence where a gift is made by will to a trustee, medical advisor, professional carer, or person who was paid to prepare the will.
To prove actual undue influence, it must be shown that someone has coerced the testator into writing their will a certain way. It is not enough to show that the testator has merely been persuaded. If the testator has been coerced into make their will a certain way then they have lost any freedom of choice. If the testator has genuinely retained their freedom of choice then they have only been persuaded and the courts will not intervene. As put by Sir JP Wilde in Hall v Hall [1868] “a testator may be led but not driven and his will must be the offspring of his own volition and not the record of someone else’s.”
Coercion takes many forms. The level of pressure that is required to influence a testator may also differ depending on their physical or mental wellbeing. The will of a weak and ill person may be more easily overborne (Edwards v Edwards [2007]). Influence may be exerted by threats to the testator, physical or emotional bullying, or even just talking to the testator in such a way that it overpowers their volition and coerces them into acting a certain way for the sake of a quiet life and to make the pressure go away.
What to look out for:
Take extra care with testator’s who are elderly, ill, or socially isolated as these types of individual are unfortunately more likely to be subjected to financial abuse and undue influence.
You should explain to the client that it is important to take instructions without potential beneficiaries present as this helps to avoid any later suggestion of undue influence. At the very least try to conduct some of your meeting alone with the testator to give you an opportunity to confirm the instructions with them free of the presence of someone who may be exerting influence over them. If they insist on having someone present, or if they need someone else present (as may be the case if they are frail or need help communicating) you should make a note of what you have advised and who was present and why in your client file.
While there are currently no presumptions of relationships of influence in relation to wills, still take care where someone who could be influential to the testator is present. Especially if they are insistent on being present or providing information for the testator.
As with all other aspects of estate planning contemporaneous attendance notes are an important safeguard, for both yourself and the client. Look out for substantial changes to the testator’s will and make inquiries into why they are making them. Why are they removing X and making a large gift to Y?
There may be times where you are asked to take instructions from a third party. The STEP Code for Will Preparation in England & Wales states that a will drafter must refuse to act if they have to deal with a third party if they are unable to confirm that the client is ‘free from coercion, undue influence, and has testamentary capacity’.
It is obviously better to take instructions from the testator themselves, and in fact the case of Sifri v Clough and Willis [2007] illustrates this point perfectly. In this case the drafter had taken instructions from the testator’s wife and drafted the will. The will was challenged by his daughter on the grounds of lack of capacity, undue influence, and lack of knowledge and approval. She also attempted to recover costs from the negligent drafter. The judge was quite critical of the drafter and allowed the recovery of costs, stating “If a solicitor does fail to take instructions from the proposed testator, does take them from a third party and does not check to see he has understood his instructions properly…and does not keep a proper note of his instructions, it is reasonably foreseeable that a challenge to whatever will is executed as a result will in turn ensure and the costs thereby incurred are also foreseeable.”
If you are suspicious that the testator is being subjected to undue influence and the instructions given are not their true wishes, and you are unable to dissuade yourself of these suspicions, then you must refuse to act.
