Undue influence arises where one party’s Will is overborne by another’s, as evidenced by direct evidence or a rebuttable presumption from certain recognised or factually proven relationships, coupled with a transaction not readily explained by ordinary motives. It differs from unconscionable conduct in that undue influence focuses on the weaker party’s lack of genuine consent. In comparison, unconscionability targets the stronger party’s exploitation of a special disadvantage, though both may overlap.
In Australia and the UK, undue influence is often described as actual (proved by direct evidence) or presumed (proved via an evidential presumption) Royal Bank of Scotland v Etridge (No 2) [2001] All ER (D) 156 (Oct) clarified these are not separate doctrines—just different ways of proving the same concept. A presumption arises where there is:
(1) a relationship of influence and
(2) a transaction inexplicable by ordinary motives, so that, in context, it strongly indicates undue influence unless rebutted.
In Bosschieter v Howitt [2024] NSWSC 1676 at[160]–[165] Slattery J held that :
Undue influence allows a court to set aside a transaction where one party has assumed a position of power, ascendancy, or domination over another, who is correspondingly dependent, reliant, or submissive.
Shown by:
Actual undue influence – proven through direct evidence of the relationship and transaction, overwhelmed the weaker party.
Presumed undue influence arises from certain recognised relationships (e.g., parent–child, solicitor–client, trustee–beneficiary) or factual proof of a similar dynamic of ascendancy and dependency.
For the presumption to operate, the transaction must not be readily explained by ordinary motives and confer a substantial benefit.
The stronger party can rebut the presumption by showing that the parties entered the transaction freely. (Thorne v Kennedy (2017) 263 CLR 85).
Slattery J noted that a granddaughter–grandmother relationship is not a recognised presumptive category, so the claim relied on direct evidence in this case.
Difference from unconscionable conduct:
Undue influence focuses on whether the weaker party’s consent was independent and voluntary.
Unconscionable conduct focuses on whether the stronger party acted against equity and good conscience by taking advantage of a special disadvantage.
They can overlap, and both may be available on the same facts (Commercial Bank of Australia v Amadio (1983) 151 CLR 447).
UK approach: Modern UK law frames the presumption around two requirements:
(1) a relationship of influence; and
(2) a transaction not readily explicable by ordinary motives, suggesting undue influence unless rebutted (Etridge [2001] UKHL 44; Nature Resorts [2022] UKPC 10).
In Howitt as Executor of the estate of the late Margaret Norma Howitt v Bosschieter [2025] NSWCA 179 the New South Wales Court of Appeal has overturned a substantial family provision order in favour of a granddaughter, finding she had already received a generous share of her grandmother’s estate, had no unmet financial needs, and had acted unconscionably in obtaining part of the estate before the death.
Background – The Estate and the Will
Margaret Norma Howitt (the deceased) died in 2022, leaving a Will made in 2021. Her main assets were the family home in Forestville and more than $200,000 in a term deposit. She had four children and eight grandchildren. The Will divided her estate equally among her children and one grandchild, Justine Bosschieter (Plaintiff/Cross-Defendant), each receiving five equal shares of roughly 20% each. The Plaintiff/Cross-Defendant, unlike her siblings, had lived with the deceased for several years and acted as her carer.
In November 2021, the Plaintiff/Cross-Defendant took the deceased to the bank, where the deceased transferred her entire $200,000 in savings to the Plaintiff/Cross-Defendant, who spent the money quickly.
After the deceased’s death, the Plaintiff/Cross-Defendant sought a family provision order under the Succession Act 2006 (NSW), claiming inadequate provision had been made for her. David Howitt (the executor), the deceased’s son, cross-claimed to recover the $200,000.
Bosschieter v Howitt [2024] NSWSC 1676 – Mixed Results
Slattery J upheld the cross-claim, finding the transfer was the product of undue influence and unconscionable conduct by Plaintiff/Cross-Defendant and ordering repayment of the $200,000 with interest.
Despite this, the Court also found Plaintiff/Cross-Defendant eligible to claim family provision as a grandchild partly dependent on the deceased in early childhood, and that there were “factors warranting” her application. Slattery J made an order for family provision worth the same amount as the repaid money, reasoning that without this, the Plaintiff/Cross-Defendant would have “very little” and would undermine the deceased’s intention to treat her equally with the other four beneficiaries.
The Appeal – Key Issues and Grounds
The executor appealed, challenging:
- Eligibility under s 57(1)(e) (rejected)
- Factors warranting the application under s 59(1)(b) (rejected)
- Adequate provision under s 59(1)(c) (allowed)
- Exercise of discretion under s 59(2) (allowed)
Eligibility and Factors Warranting the Claim
The Court of Appeal (Free JA, Ward P, Kirk JA) upheld Slattery J’s finding that the Plaintiff/Cross-Defendant was partly dependent on the deceased for the first 2½ years of her life. Dependency did not require the deceased to have stood in loco parentis; partial dependency on more than one person at the same time is enough.
As for “factors warranting” an application, the Court accepted that Plaintiff/Cross-Defendant’s unique position—being her grandmother’s carer since 2015 and the only grandchild named as a beneficiary—justified regarding her as a natural object of testamentary recognition. Slattery J based the explanation of this brief treatment on the overlap with other issues and the limited submissions made on it.
Adequate Provision and the Exercise of Discretion
The Court took a different view on adequate provision and whether a family provision order was appropriate.
Key reasons:
- Size of Inheritance: After repaying the $200,000, the Plaintiff/Cross-Defendant would still receive about $410,000. The claim sought more, at the expense of other beneficiaries.
- The deceased’s Decisions: With legal advice, the deceased had deliberately given the Plaintiff/Cross-Defendant the same 20% share as her children—far above her other grandchildren—while recognising she had already benefited from a carer’s pension and reduced rent.
- Financial Needs: Slattery J rejected all of Plaintiff/Cross-Defendant’s claimed needs (house purchase, superannuation top-up, contingency fund). He found she had “real resources” from her earning capacity, family support, and inheritance.
- Other Beneficiaries’ Needs: Two beneficiaries, Jennifer and Denise, had urgent housing needs for children with special needs. Slattery J had noted that “community standards” did not require taking from them to benefit the Plaintiff/Cross-Defendant.
- Character and Conduct: The plaintiff/Cross-Defendant acted unconscionably in taking the $200,000, frustrated the estate administration, and damaged the property after refusing to vacate.
Errors in Reasoning
The Court found Slattery J had made several errors:
- Speculative costs assumptions: The finding that repayment “with interest and costs” would leave the Plaintiff/Cross-Defendant with “very little” was unsupported. The costs were unquantified and uncertain and stemmed from proceedings she had caused through her misconduct.
- Misuse of testamentary intention: The idea that repayment would frustrate the deceased’s intention of equal shares was wrong; granting more would give the Plaintiff/Cross-Defendant a greater share than the others.
- Failure to weigh impact on others: A significant factor against such a family provision order was the reduction in each other beneficiary’s share by at least $40,000, despite their pressing needs that the Court should have considered under s 59(2).
Outcome
The Court of Appeal allowed the appeal on Grounds 3 and 4. It held that:
- Not meeting the jurisdictional precondition in s 59(1)(c) (inadequate provision).
- Even if it had been, the Court should not have exercised its discretion under s 59(2) in the Plaintiff/Cross-Defendant’s favour.
- The Court set aside the family provision order and made no further provision.
Key Takeaways:
- Partial dependency for grandchildren’s eligibility under s 57(1)(e) is a low threshold, but proving eligibility is only the first step.
- A large existing inheritance that meets the claimant’s needs can defeat a family provision claim.
- Courts Will give significant weight to the impact on other beneficiaries, especially where they have pressing needs.
- Misconduct by the claimant—such as undue influence, dissipation of assets, and obstruction of estate administration—can weigh heavily against provision.