Although a Will is a document that should be updated from time to time if your Great Aunt – makes a new will benefitting your cousin who happens to have introduced her to the person who drafted the Will, these circumstances will be treated as suspicious particularly if it is later required to prove that the will was valid.
It has been borne out by experience that suspicious circumstances and undue influence being exerted on the will-maker are often linked. Where a person is in a position where their capacity to appreciate what they are doing and make decisions, is diminished, those around them whether they are unscrupulous “friends” and family may influence them to make wills in their favour.
Even though these wills can be challenged on the grounds of undue influence in the will making process after the death of the will-maker when probate of their will is being sought, the financial and emotional cost of such proceedings can take their toll.
Where a valid suspicion is raised, it is up to those who wish to prove that the will is valid to remove the suspicion. If they fail to do so the whole will is void. They must prove the following:-
(a) that the plaintiff had the capacity to influence the will-maker;
(b) the influence was exercised;
(c) its exercise was undue
(d) its exercise brought about the transaction.
It is only when suspicion is removed that the onus is on those who oppose the will to prove the fraud or undue influence.
“when the testator is coerced into doing something he or she has no desire to do, that it is undue influence.”
The standard of proof is on the balance of probabilities. However, mere suspicion on behalf of a disappointed potential beneficiary is not sufficient to suggest that the will-maker suffered from undue influence. As the will-maker is dead those alleging undue influence will have to rely on circumstantial evidence to prove it.
A Court must infer from this circumstantial evidence, that it is satisfied that the circumstances raised are more probable in favour of what was alleged than not, after the evidence on the question had been evaluated as a whole. Further, the exercise of undue influence in a testamentary context may also be regarded as unlikely in most circumstances. Expectant beneficiaries do not ordinarily put pressure on elderly will-makers in an endeavour to change their minds against their will.That being said there are concerns that some will-makers die having made wills that do not represent their true intentions and cannot be rectified after their death.
However in some jurisdictions to succeed with a claim for undue influence, the applicant has to prove the actual coercion; evidence of circumstances consistent with coercion, but not amounting to proof of coercion, is not enough.
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