46 legal focus
Probate disputes: is it possible to prove undue influence?
When disputes arise about the validity of a Will, there is often a concern that the testator may have been unduly influenced by someone to make the Will in their favour, writes Sarah Foster of Henmans Freeth LLP
...there are few recent cases where a Will has
been set aside on grounds of undue influence...
...it may demonstrate a move to the courts being more willing to make findings of undue influence based on inference and the surrounding circumstances
This typically arises where an elderly person has become particularly close to someone prior to the making of the Will. This could be a new friend, a carer, or a family member who has assumed care for the testator to the exclusion of the rest of the family.
If it can be proved that a Will was made as a result of actual undue influence, the Will will be set aside. This is easier said than done, however. In particular, and in the context of Wills, there is no presumption of undue influence which needs to be dispelled, as can be the case with lifetime gifts where (a) a relationship of “trust and confidence” arises (such as doctor and patient, parent and child or, say, carer and client) and (b) the lifetime gift calls for an explanation.
Accordingly, if a son, assisting with his elderly mother’s affairs has written himself a large cheque during her lifetime as her attorney, the transaction will be subject to a presumption of undue influence. It is somewhat ironic therefore that if the same son has instead pressurised his mother to make a Will in his favour, it is much more difficult to set the Will aside.
In the case of Wills, mere persuasion or appeals to ties of affection are not considered to amount to undue influence. The testator’s will (in the sense of their own wishes) must be “overborne”. It must be proved that there has been pressure amounting to coercion or fraud. That is difficult, as coercion does not usually occur with witnesses present. The courts also require that there must be “no other explanation” for the Will but that it was a result of undue influence.
Accordingly there are few recent cases where a Will has been set aside on grounds of undue influence.
However in a recent case (Schrader v Schrader) in March of this year the High Court set aside a Will even though it had to find that undue influence had taken place by inference from the surrounding circumstantial evidence.
The facts were that Mrs Schrader had become frail and her son, Nick, had moved in with her. Nick, by his own admission had a “hatred” of his brother, Bill. Nick had a very forceful personality and was physically intimidating. He had been known to be short tempered with his mother, but there was no suggestion of any abuse of her; he was, overall, a loving son.
Nick had selected a Will making firm for his mother (rather than contacting her usual solicitor). The Will maker did not make many enquiries into possible pressure by Nick despite the Will favouring him. Mrs Schrader had told the Will maker that Nick had sold his house voluntarily when he came to look after her (which was not true, he had lost it in a bankruptcy), that information could only have come
www.businessmag.co.uk
Sarah Foster, managing partner and head of contentious Wills, trusts and probate department
from Nick. Nick was aware of the terms of the Will and had annotated a draft.
The Court found that undue influence had been established based on the circumstantial evidence, and took account in particular of Mrs Schrader’s vulnerability and dependency on Nick, his forceful personality and his view that he had not been treated equally with Bill in the past. Despite the fact that there was no direct evidence that Nick had brought undue pressure to bear upon his mother to change her Will in his favour and leave him her house to the exclusion of Bill, the Will was set aside.
Is this therefore a change in the law? The answer is “not quite”, but it may demonstrate a move to the courts being more willing to make findings of undue influence based on inference and the surrounding circumstances.
Constance McDonnell of 3 Stone Buildings, counsel for the successful defendant in the Schrader case, commented to us that: “The case is noteworthy as demonstrating the kind of evidence from which a court may make an inference that undue influence has occurred.... It should be remembered that these cases are highly fact sensitive. While the decision does not amount to a change in the law, it does appear that the Court may be willing to apply a somewhat softened test rather than the previous maxim that 'on the facts the only possible hypothesis must be undue influence', and inferences can be drawn as to whether undue influence occurred.”
This may, therefore be a helpful case for those concerned about undue influence, and wondering if the law will assist them.
If you would like to talk through any of the issues mentioned in this article or discuss how we can help you with disputes relating to trusts or probate, contact me – details below.
Details: Sarah Foster 01865-781055
sarah.foster@
henmansfreeth.co.uk
THE BUSINESS MAGAZINE – THAMES VALLEY – JUNE 2013
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