How to challenge will under 'undue influence' - top tips from a tax lawyer

How to challenge a will under ‘undue influence’

A recent case highlights the complexities of challenging a will on the ground of the testator being subject to poisonous influence, writes Amy Wilford

It has been recently reported that Lady Jacqueline Killearn, who died in 2015, left her entire estate to her former lover, Robert Hay, while leaving nothing to her three children. Mr Hay was appointed as the executor of Lady Killearn’s estate and stood to inherit her entire £626,000 fortune, despite not having had a relationship with her since the 1960s.

Lady Killearn did not leave anything for her two daughters, stating that she had made adequate provision for them during her lifetime. Further, there was no mention of her son in her will, with whom she had reportedly fallen out over her East Sussex property.

The general rule in England and Wales is that a testator – a person making a will – can leave what they choose to whomever they choose, which includes disinheriting a child. There are often valid reasons for doing so, however it is possible to challenge a will if a family member believes that an executor and/or beneficiary of an estate unduly influenced the testator to leave their estate in the way they did.

For an undue influence challenge to succeed there must be coercion or fraud. The challenger has to prove that the person making the will was influenced to the extent that their free will was completely oppressed. There are no presumptions of undue influence in relation to wills and therefore whoever alleges it must prove it. There is a very high threshold to challenge a will on this basis, and convincing and direct evidence is required. However, this is often hard to obtain given that the very nature of the act habitually means that it takes place in private. Therefore alleging undue influence is not a decision to be taken lightly.

In a well-known 2007 case, a child of the testator deliberately gave incorrect information in order to secure an inheritance, which was held to amount to undue influence, i.e. ‘deliberate poisoning of a person’s mind’. The important question to consider when considering bringing a claim of this kind is whether the conduct is such that it overpowers the will of the testator. This can vary depending on the mind and health of the testator and the judge in the 2007 case concluded: ‘a ‘drip drip’ approach may be highly effective in sapping the will of a testator’.

challenge a willWhen evaluating disputes over the validity of wills, the court always seeks to ensure that the will is an expression of the wishes of the person making the will and not someone else’s. When determining whether undue influence was exerted, the court will consider factors such as the testator’s capacity, the testator’s dependency on the person exerting the influence, and whether a solicitor was involved in the will making process.

Claims for undue influence in disputes over wills are notoriously difficult to prove. It is rare to bring a claim of this kind on its own and it is more commonly added to another ground for challenging a will, for example lack of capacity or lack of knowledge and approval.

It is also worth bearing in mind that if a will is successfully challenged, the previous will is then admitted to probate. There is therefore little point in challenging a will on the basis of undue influence, or any other ground, if no benefit is to be gained by doing so.

If a successful will challenge claim does not look likely, it is possible for certain family members, including a spouse, civil partner, or child of the deceased, to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if the will is not thought to make reasonable financial provision for them.

A 1975 Act claim needs to be brought within six months of the date of the grant. Such claims can be costly and it is important to consider the size of the estate at the outset, which is one of a number of factors taken into consideration by the court.

Amy Wilford is an associate at Thomson Snell & Passmore LLP