The Daily Mail recently published an anonymous article titled “I got Mum to change her Will so I’ll get more than my sisters without them knowing – because they barely lift a finger to help her”. The anonymous author states “Until now, Mum, 83, had always stated that her money would be split evenly between her three children. Today, persuaded by me, she has agreed to change her Will so that I will be the main beneficiary”.
This article will have left many readers asking whether there is anything wrong with what the author has done, and whether there is anything that the sisters can do to challenge it.
We often come across scenarios similar to this, where one child has taken on the majority of the responsibility for caring for a parent, and a Will has been made which leaves the majority of the parent’s estate to that child. In some cases, the will may be perfectly legitimate. In other cases, there may be suggestions that the child with caring responsibilities exploited their parent’s reliance on them to unduly influence their parent into changing their Will.
Legally, whether the actions of the article’s author can be successfully challenged depends on whether the author persuaded their mother to change her Will, or whether they unduly influenced their mother into changing her Will.
Everyone is influenced and persuaded every day by people; your spouse, your children, your parents, your friends, your colleagues, advertisers etc. This can be entirely legitimate. When does it become “undue” and therefore open to challenge?
Undue influence arises when somebody’s judgement is overtaken, so that they can no longer make their own decisions freely. Undue influence is stronger than persuasion, and involves an element of coercion. A will can be declared invalid if it was produced as a result of undue influence. In contrast, a will cannot be declared invalid on the basis that it was produced through persuasion.
In the recent case of Rea v Rea, the Court of Appeal reiterated that there is a distinction between undue influence and persuasion, and that there is nothing wrong with using legitimate persuasion to influence somebody into changing their Will. The Court of Appeal also highlighted that in most cases persuasion will be more likely than undue influence, as “potential beneficiaries are… less likely to resort to coercion than to rely on affection, gratitude or even persuasion”.
In the title of the Daily Mail article the author refers to the fact that their sisters do not know about the change to the Will. The existence of a Will which may have been produced through undue influence is often only discovered after the testator (the person who made the Will) has died. This makes it difficult to find out whether the will was produced through undue influence or through persuasion, as often any influence or persuasion will have taken place behind closed doors.
The Courts recognise the difficulty of proving that undue influence has taken place. Therefore, it is possible for a Court to make a finding of undue influence based on circumstantial evidence. For example, the Court could be asked to infer undue influence from the fact that the main beneficiary of a Will was heavily involved in the making of the Will and then kept its existence secret, or from the fact that there is no other reasonable explanation for the terms of a will. Although it is possible for the Court to make a finding of undue influence in this way, there is a high bar for claimants to reach as the Court will work from the starting point that undue influence is “inherently improbable”.
In summary, there is a difference between legitimately persuading someone to change their Will, and unduly influencing someone into doing so. Legitimate persuasion cannot invalidate a will, but undue influence can. There can sometimes be a fine line between legitimate persuasion and undue influence, and this is a complex area of law.
If you require advice on any of these issues a member of our specialist private wealth disputes team will be happy to discuss matters with you.