It is generally recognized that it is extremely difficult to prove undue influence. The person who could give the best evidence is dead. That does not mean that it is impossible to establish undue influence, but there are relatively few cases where this has happened.
It is important to note that undue influence and lack of capacity to make the challenged will – are mutually exclusive. In making a finding that there was undue influence, the Court must first find that the person had the capacity to make a will.
If a Will is challenged on the grounds of either lack of capacity or undue influence, that decision would be made following the report of a medical expert.
A medical expert should deal with the question of the will-maker’s vulnerability to undue influence. The Court decides whether or not influence was exerted on the will-maker. The International Psychogeriatric Association Task Force on Wills and Undue Influence published a list of risk factors for undue influence:
- Relationship risk factors whether the relationship between a vulnerable will-maker and a range of family members, friends, and carers is “confidential” or close.
- Social or environmental risk factors such as dependency, isolation, family conflict and recent bereavement
- Psychological factors such as delirium; emotional vulnerability conferred by grief, loneliness, deathbed wills and sexual bargaining; personality traits such as dependency, psychiatric illnesses such as depression, psychosis and anxiety, and cognitive impairment.
- Legal risk factors such as unnatural provisions in a will, or provisions not in keeping with previous wishes of the person making the will, and the instigation or procurement of a will by a beneficiary
Cognitive impairment, should be considered in relation to the level of impairment that the Will maker is suffering as someone with only mild cognitive impairment might have to be subjected to a high level of influence for that to be considered undue however the same level of impairment associated with frontal lobe deficits in judgment may be particularly susceptible to influence.
Medical experts are in a difficult position when assessing the Will-makers mind. After all the will-maker might have been resistant to the opinion and advice of others. Without meeting the will maker an expert is reliant upon the memory of those who did know them and would not know if they were (or were not) stubborn, intransigent or belligerent, and therefore more (or less) protective against influence.
Equally, just as some disabled older people are vulnerable to the influence of carers, will makers have been known to use their financial resources to manipulate carers, using promises of will bequests to secure promises of care.