Undue Influence
| Author | Nasreen Pearce |
| Pages | 75-87 |
Chapter 6
Undue Influence
6.1 INTRODUCTION
A will made as a result of undue influence will not be admitted to probate. There are, however, two points which need to be recognised before a will is challenged on this ground. First, that there is no presumption of undue influence in the case of a will. Secondly, and one which follows from the first point, is that the burden of proving undue influence is on the party who alleges it. In relation to the first point, as Scarman J said in Re Fuld [1968] P 675 at 722:
Lord Penzance once said of the issues of testamentary capacity, knowledge and approval, undue influence and fraud, that they very often merge into one another. That position has now been made abundantly clear by the decision of the House of Lords in Wintle v Nye ... it may well be that positive charges of fraud and undue influence will not feature as largely in the pleadings of probate cases, now that Wintle v Nye has been decided ...
Yet it has frequently been relied on as an additional ground with lack of knowledge and approval, and lack of capacity. Although in many cases it is rejected (but see Pearce v Beverley [2013] EW Misc 10 (CC), and Schrader v Schrader [2013] EWHC 466 (Ch), where undue influence was successfully established), undue influence continues to be raised to challenge both testamentary and lifetime gifts.
This may be due to misconception and confusion about what it means and when it may be appropriately raised, and failure to appreciate that because there is no presumption the burden of proving it lies on the person who alleges it. Some cases suggest that in order to succeed, strong evidence is required, whereas others suggest a shift towards a less strict evidential proof. The reason for the differences may be because much depends on the circumstances and the factual situation. It may also depend on whether the disposition is made in a will or is a lifetime transaction. The person who alleges undue influence must prove it and the evidential burden of proving it is difficult. It should only be relied on as a last
76 A Practitioner’s Guide to Probate Disputes
resort and only if there is substantial evidence to prove it. Be aware though that if the claim fails, it is likely that the claimant will have to bear the costs of the litigation.
In the case of a lifetime gift, a presumption of undue influence may arise in relation to certain relationships.
6.2 WHAT CONSTITUTES UNDUE INFLUENCE?
Where a will is challenged on the ground of undue influence, the person making the claim must show that the testator/testatrix was coerced into making the will or disposition in the will, which he/she did not wish to make, and that the will or disposition was made not of his/her own volition but as a result of the influence of the third party who dominated the testator’s/testatrix’s mind. It has been stated that, ‘It is only when the will of the testator is coerced into doing that which he does not desire to do that it can be regarded that the third party’s actions amount to undue influence’ (see Wingrove v Wingrove (1885) 11 PD 81).
Although there is no presumption of undue influence, the challenge is more commonly raised in cases where the testator/testatrix was weak, frail, in ill health, dependent on another for his/her care or suffering from impaired mental capacity. (see, e.g. Hubbard and Another v Scott and Others [2011] EWHC 2750 (Ch)). That, of course, does not exclude a challenge being made where the testator/ testatrix was of sound mind and understanding and in good health. Undue influence may take many forms. The coercion may be brought about by physical force, such as occurred in Chana (Gavinder) v Chana (Harjit Kaur) [2001] 2 WTLR 205. It may result from mental pressure being put on an individual, for example where extreme pressure is exerted on the testator/testatrix to the extent that it breaks his/her will and he/she gives in to the pressure. Pressure which does not result in the testator/testatrix succumbing his/her will so that it becomes that of the person exerting the pressure does not amount to undue influence. Often, coercion is confused with influence, and where the line is drawn before influence becomes unacceptable is blurred. The principle which applies was stated in Hall v Hall (1868) LR 1 P & D 481 as follows:
Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like – these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on fear or the hopes, if so exerted as to overpower the volition without which no valid will can be made ... In a word the 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.
…
Persuasion is not unlawful, but pressure of whatever character if so exercised as to overpower the volition without convincing the judgment of the testator will constitute undue influence, though no force is either used or threatened.
Mere influence exercised over the testator/testatrix by another person does not constitute undue influence unless there is sufficient proof of coercion. Proof of motive and opportunity for the exercise of influence over the testator/testatrix is relevant, but even if this has led him/her to make a disposition for the benefit of that person to the exclusion of another, that alone is not sufficient to establish undue influence; there must also be proof of coercion which overpowered the volition of the testator/testatrix (see Craig v Lamoureux [1920] AC 349). It must be shown that the influence which one had over the other was abused.
Lewison J in Re Edwards (Deceased); Edwards v Edwards and Others [2007] EWHC 1119 (Ch) summarised the law as follows (at [47]):
i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud;
v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear...
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