Undue influence is an ever-present threat in the will writing industry and one that will writers should be vigilant about, particularly if the client is vulnerable. Even where you fully believe that the client is acting on their own free will, you should take steps to avoid any displeased parties from making claims of undue influence. This week’s article will cover a brief introduction of what undue influence is in relation to wills and what will writers need to do in order to protect clients and themselves.
What is undue influence?
Undue influence is where a third party applies pressure to the testator to the extent that it overpowers the testator’s own free will so that their will cannot be said to be their true wishes.
Undue influence may come in the form of forcing the testator into making a will in the third party’s favour by physical or emotional threats or by poisoning the testator’s mind against another person. Simple persuasion is not seen as undue influence and for there to be undue influence there must be an element of coercion. It is often said that a testator can be lead to writing a will in a certain way but cannot be driven.
Undue influence is the least successful method of challenging a will. There is a high burden to proof to overcome and is difficult in practice to prove as it likely takes place behind closed doors, with little actual evidence, and by the time undue influence is alleged the testator has died and is not able to provide evidence.
For will-based undue influence, it must be proven that undue influence has taken place by the person alleging undue influence. This is contrasted to lifetime gifts where there are some instances where undue influence is presumed where the gift appears irrational or needs explanation or if there is a relation of presumed influence, in which case the defendant must prove that the donor acted in their own free will. This may change in the future however as the Law Commission in 2017 identified the law of undue influence relating to wills as an area of potential change and suggested bringing the law more in line with lifetime gifts.
What should will writers do?
Will writers should always be wary of undue influence and there are a number of steps to take to protect the testator and themselves. You should be particularly cautious if the testator is dependant of a third party, frail, ill or more susceptible to influence for any other reason.
You should always ask if the testator has any previous wills and if they could provide a copy. If the testator is making major changes to the previous will, you should enquire into the reasons for these changes. The answers the testator gives to these questions should be recorded in your files.
The involvement of third parties can raise red flags. WillPack will never accept instructions for a client’s will if they have been provided by a third party and not by the client themselves. You should only take instructions from the client themselves to ensure that those are the client’s true wishes.
Similarly, you should make efforts to take instructions from the client alone. If the client insists on having a third-party present, you should note why this person is present in your notes and make efforts to speak to the client alone. If the instructions are potentially contentious, and the contentiousness occurs by the inclusion of the third party in the meeting, you may need to demand that the instructions are taken without the third-party present.
If the case is for a couple, you should speak to each person alone at some point to ensure that the instructions are the true wishes of both parties. You should explain to the client why it is preferable to speak to both of them alone.
You should record who booked the initial appointment.
Claims of undue influence will often go along with a claim of lack of testamentary capacity. Should you have doubts on a testator’s mental capacity, we would recommend that you seek a professional medical opinion.
Even if you are happy with a testator’s mental capacity but are concerned about the potential risk of an unhappy party claiming the testator lacked capacity we would strongly recommend that you seek a professional opinion in order to mitigate the chances of a successful claim. If you recommend a professional opinion but the client does not wish to proceed with that advice you should:
- Explain to the client that the lack of medical evidence of testamentary capacity may increase the risk of the will being successfully challenged.
- Ask the client to confirm that they wish to continue.
- Record the advice you have given and the client’s decision and retain it on your will file.
An example of this is in the recent case of Rea v Rea & Ors  EWHC 2434 (Ch) where the solicitor drafting the will felt the client had capacity but since the will was likely to be contentious she had a capacity assessment anyway to cover herself since the client was physically frail. The solicitor in that case was highly praised for noting that the testator’s will was potentially contentious and taking additional steps to mitigate any potential claim.
If WillPack receive an instruction where we believe is potentially contentious, we may put the case on hold and request further information on your meeting with the clients. In the event that we believe that further steps should be taken, we may refuse to proceed with the instruction until those further steps have been taken.