Contesting a Will on Grounds of Undue Influence

A will only reflects a person’s true wishes if they made it freely. Where an elderly or vulnerable person was pressured, coerced or manipulated into making or changing their will, whether by a relative, a friend, a carer or anyone else, the will may be invalid. Our specialist solicitors can advise you on whether a will can be challenged on grounds of undue influence.

Call us on 0161 930 5151 or email willdisputeteam@gorvins.com for a confidential conversation about a will you are concerned about.

What is undue influence?

Undue influence in the context of a will means coercion: pressure exerted on the person making the will (the testator) to the point that their own free judgement is overborne, so the will reflects someone else’s wishes rather than their own. The courts have described it as pressure that overpowers the testator’s volition, and it can take many forms, from threats and bullying to persistently wearing a vulnerable person down for a quiet life.

Importantly, the law draws a firm line between undue influence and legitimate persuasion. Appealing to someone’s affection, reminding them of past kindness, or asking to be remembered in a will are not, by themselves, undue influence. The pressure has to go beyond persuasion and actually overbear the person’s free will.

When does undue influence arise?

Concerns about undue influence commonly arise where:

• an elderly or unwell person made a new will shortly before death
• the will benefits someone who had recently become closely involved in their care or finances
• the new will departs sharply from the person’s long-standing wishes or earlier wills
• a beneficiary isolated the person from other family members
• a beneficiary arranged the will, chose the solicitor, or sat in on the instructions
• someone in a position of trust, such as a carer or attorney, stood to gain

Undue influence often overlaps with concerns about mental capacity, and it is closely related to fraudulent calumny, where someone poisons the testator’s mind against a person who would naturally have inherited by making dishonest statements about them.

Who has to prove undue influence?

This is a point that is widely misunderstood, and it matters a great deal. Unlike a lifetime gift, where in certain relationships undue influence can be presumed, there is no presumption of undue influence for wills. This principle was set out clearly in the case of Edwards v Edwards in 2007.

That means the burden of proving undue influence lies squarely on the person alleging it, not on the person who benefited. And the standard is high. It is not enough to show that the facts are merely consistent with undue influence; the evidence must be inconsistent with any other explanation for the will. Because coercion happens behind closed doors, and the main witness, the deceased, cannot give evidence, these claims are among the hardest to prove in contentious probate. Confidence level: Very confident on the burden and the standard, both being settled law.

Why lack of knowledge and approval is often the better route

Because the bar for undue influence is so high, experienced solicitors will often consider whether a claim is better framed as one of “want of knowledge and approval”, arguing that the testator did not truly know and approve the contents of the will, particularly where there are suspicious circumstances such as a beneficiary being involved in preparing it. We will advise you on the strongest way to put your case, rather than defaulting to an undue influence allegation that may be difficult to sustain.

What evidence is needed?

Undue influence is proved through circumstantial evidence from which the court can draw inferences. Useful evidence often includes:

• the will file and attendance notes, showing who gave instructions and who was present
• evidence of whether the testator received independent legal advice
• the person’s medical records, showing frailty or vulnerability to pressure
• witness accounts from family, friends and carers the person confided in
• comparison with earlier wills and known long-standing wishes
• evidence of the beneficiary’s involvement, control or isolation of the testator

The best single piece of evidence, one way or the other, is usually whether the person saw a solicitor independently, away from the person who benefited.

A word of caution on cost

Undue influence, like fraud, is a serious allegation that should never be made without real evidence to support it. If the allegation is pursued and fails, the court may order the person who made it to pay costs. This is exactly why these claims should be assessed honestly by an experienced contentious probate solicitor before any allegation is made. We will give you a candid view of the merits before you commit to a claim.

What happens if a will is set aside for undue influence?

If a will is declared invalid, the estate does not automatically pass to the person who challenged it. Instead, the most recent valid earlier will takes effect, or, if there is none, the estate is distributed under the intestacy rules. In some cases only the affected parts of a will are set aside.

Is there a time limit?

There is no strict statutory deadline for challenging a will’s validity on undue influence grounds, but you should act quickly, as evidence and witness recollections fade and it becomes far harder to recover assets once an estate has been distributed. The first protective step is often to enter a caveat at the Probate Registry to pause the grant of probate. If your concern also involves a claim for reasonable financial provision, note that Inheritance Act claims carry a strict six-month deadline from the grant of probate.

How Gorvins can help

Our Will Disputes and Contentious Probate team acts for both those challenging and those defending a will where undue influence is alleged. We can:

• assess honestly whether an undue influence claim is realistic, or whether another ground is stronger
• enter a caveat to pause probate while we investigate
• obtain the will file, medical records and independent legal advice notes
• gather witness evidence and build the circumstantial case
• bring or defend a claim to have the will declared valid or invalid
• resolve disputes through negotiation or mediation where possible, and litigate when necessary

Our page on contesting a will explains all the grounds on which a will can be challenged.

Gorvins is a Legal 500 recognised firm based in Stockport, acting for clients across Greater Manchester, the North West and nationally.

Call us on 0161 930 5151, email willdisputeteam@gorvins.com, or complete the enquiry form below and we will call you straight back.

Undue influence and wills FAQs

What counts as undue influence over a will?

Coercion: pressure strong enough to overpower the testator’s free will, so the will reflects someone else’s wishes. It is distinct from legitimate persuasion, such as appeals to affection, which the law permits.

Who has to prove undue influence?

The person alleging it. Unlike lifetime gifts, there is no presumption of undue influence for wills, so the burden lies on the challenger, and to a high standard: the evidence must be inconsistent with any explanation other than undue influence.

Why is undue influence so hard to prove?

Because it happens in private and the key witness, the person who made the will, has died. Claims usually rely on circumstantial evidence, and the court requires commensurately strong evidence before setting a will aside.

What is the difference between undue influence and fraudulent calumny?

Undue influence is coercion of the testator. Fraudulent calumny is where someone dishonestly poisons the testator’s mind against a person who would naturally have inherited, by making false statements about them, so that person is cut out.

How long do I have to challenge a will for undue influence?

There is no strict statutory deadline for a validity challenge, but you should act promptly as evidence fades and estates get distributed. Related Inheritance Act claims carry a strict six-month deadline from the grant of probate.

What happens if the will is declared invalid?

The estate passes under the most recent valid earlier will, or under the intestacy rules if there is no earlier will. It does not automatically go to the person who challenged the will.