In order to prove undue influence it must be shown that the will was a result of the exercise of that power to overbear the will of the testator.
“To be undue influence in the eyes of the law there must be – to sum it up in a word – coercion.”
The difficulty to prove undue influence is illustrated by the following cases.
A Will maker made a will in November 1997 leaving his estate to his neighbour, Dorothy provided that she survived him by 30 days, if she did not, the estate would go to his two children.
Dorothy died in 2008 and in November 2009, the will maker, had a new Will drafted by his solicitor leaving his estate, to his cleaner.
His children alleged that their father had known his cleaner for less than three months before his death and there was no reason why their father would have left his estate to the cleaner and not to family members.
The children thought that the cleaner’s conduct following their father’s death – she concealed the fact of his death and the place and time of his funeral from his friends – was strange. In the children’s opinion the cleaner was only ever interested in their father’s money and not in him personally.
The Judge accepted that the cleaner was fond of the Will maker and although the circumstances may have been suspicious, the facts did not amount to undue influence. The Judge concluded that as the Will maker was elderly and lonely and as his children visited him infrequently, had no one else he wanted to leave his estate to.
In a different case the will maker died leaving her estate to her friend, Mr Cranfield. The Will maker’s granddaughter challenged the validity of the will, one of the grounds being undue influence.
The Will maker had an initial meeting in her home to obtain instructions was attended by two solicitors from a firm Birkett Long, the Will-maker and Mr Cranfield. The solicitor recognised the potential for undue influence by Mr Cranfield. When the Will maker next spoke to the solicitor she wanted to withdraw her instructions. The solicitor thought she could hear Mr Cranfield speaking in the background.
Mr Cranfield telephoned the solicitor later that day and confirmed that the Will maker did not wish to proceed with making her will.
The following day Mr Cranfield contacted another solicitor and requested that they prepare a Will for the Will-maker. The solicitor was concerned that the Will-maker appeared on occasions to be “confused”; was consuming a cocktail of medication and alcohol and
“she may be taken advantage of in her confused state”.
Despite these suspicious circumstances the Judge believed that she had made her decision of her own free will and that there was “no arguable case” of undue influence.
Finally a Will maker aged 78 was discharged from hospital with terminal cancer. On that day he made a will leaving his estate worth £4million to his long-term partner, Maureen. One hour after executing the will they were married; he died three days later. This may not sound suspicious, however, he repeatedly told those around him that he wished to leave his estate to his three daughters and for Maureen to have a life interest.
However, the Court was not able to make a finding of undue influence. Although it could be argued that the Will did not reflect his expressed wishes the Will maker could have been getting his ‘house in order’ in leaving his estate to the woman he lived with for for 32 years and had just chosen to marry.
In order to prove undue influence the following question must be answered positively: If the Will-maker were alive would they say
“This is not my wish but I must do it”?
If the answer is no then undue influence is not proven.