Kelly-Anne Carr of Wright Hassall explores the unusual grounds on which to challenge the validity of a will; undue influence, fraud, and forgery.

What is ‘undue influence’ when disputing a will?

In the context of will making, ‘undue influence’ occurs when the testator of a will is coerced by another into changing their will to benefit that other person.

The term has long been established in case law, such as in:

• Hall v Hall [1868], where it was defined as: “to pressure whatever character … if so exercised to overpower a person’s wishes”
• Wingrove v Wingrove [1885], where it was defined as: “to be undue influence in the eye of the law there must be – to sum it up in one word – coercion”

More recently, in the case of Edwards v Edwards [2007], the court said: “it is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.”

In this case, the deceased had three sons. She had a close relationship with Son A and Son B but a difficult relationship with Son C. Shortly prior to her death, the deceased made a new will leaving all her residuary estate to Son C and disinherited Son A and Son B to their surprise. At the same time, the deceased also made false accusations of theft against Son A.

In this case, the court concluded that there was “no other reasonable explanation” for the deceased’s behaviour other than that her mind has been deliberately poisoned by Son C against Son A and Son B. The court concluded that the deceased’s will was not valid on the basis that it has been affected by the undue influence of Son C.

What behaviours do not amount to ‘undue influence’?

The amount of pressure or influence required to overbear a testator’s wishes will vary from person to person, depending on personality, age, health etc. As such, it is important to acknowledge the behaviours that do not amount to undue influence. These include appealing to the affections of the testator by:

• pulling on their heart strings, eg: “I am your only child and have done so much for you over all of these years”
• heavy persuasion, eg: “If I don’t receive any inheritance from you, I will not be able to help my child and your grandchild to buy their first property like you always wanted”
• badgering until they give in, eg: “As I have said before, I need some inheritance to pay off debts, please can you leave me something to help me out”
• befriending or spoiling an elderly testator with a view to be included in their will

Deliberately concealing information that would show someone in a less favourable light or anyone else in a more favourable light would also not amount to undue influence.

What is ‘fraud’ when disputing a will?

In the context of will making, ‘fraud’ occurs when deception, misrepresentation, or dishonesty is deliberately used for personal gain or damage to another individual. This is a wide definition and encompasses various scenarios. If the true intentions of the testator are not contained within their will, it could be argued that a fraud has occurred.

Examples of fraud in the context of wills include:

• impersonation of the testator by a fraudster to execute the will
• misleading the testator to sign a will when they believe the document to be another document
• a beneficiary making false representations to the testator about the character of a potential other beneficiary to deceive the testator to leave more monies to the perpetrator of the false representation
• the destruction of the testator’s will with the intention of gaining from the estate as a result of the rules of intestacy

What is ‘forgery’ when disputing a will?

Forgery occurs when a testator’s will, in its entirety, or the testator’s signature has been written by an imposer posing as the testator.

Usually, the instruction of a specialist handwriting expert will be required to obtain a report as to whether, in their professional opinion, the will and/or the signature is that of the testator’s. However, the court still must consider all evidence and a handwriting expert’s opinion will not always be conclusive.

How can you contest a will on the grounds of undue influence, fraud or forgery?

Proving undue influence, fraud or forgery in court is notoriously difficult. The burden of proof for these three claims is akin to that in criminal cases being, ‘beyond reasonable doubt’. The evidential threshold is therefore much higher and usually, by their very nature, these sorts of events tend to happen in secret and therefore actually finding any evidence of it happening to get over this burden is rare. For the reasons of lack of evidence and the higher burden of proof, these grounds are therefore rarely pleaded. 

An alternative claim for disappointed claimants who have these sorts of concerns is to raise an allegation that the testator did not have knowledge and approval of the will. If this is pleaded, once suspicious circumstances are established (of the kind outlined above) the lower burden of proof of ‘on the balance of probabilities’ applies and the onus is shifted to the propounder of the will to establish its validity.

About the author

Kelly-Anne Carr (nee Schofield) is a Solicitor in the Contentious Probate Department at Wright Hassall LLP.

See also

Contesting a will on the grounds of 'knowledge and approval'

Disputing a will - the practical considerations

Is there an intestacy? How to tell if a will is fraudulent

Find out more

Intestacy - who inherits if someone dies without a will? (Gov.uk)

Image: Getty Images

Publication date: 4 March 2020