Situations may arise where you may suspect your loved one has been taken advantage of. Family members may become suspicious when their dearly departed leave a significant portion of their assets to one family member or to someone who is not even family. It is important to be aware of how you may challenge a will on suspicion of undue influence, as it is a difficult argument to successfully prove.
What is undue influence?
Undue influence refers to situations where pressure has been placed on the will maker to change their will in a way the will maker would not have changed if they made the decision freely. The undue influence may occur by lying to, threatening or blackmailing the will maker to write their will in a way they would not have ordinarily done so if this influence had not occurred.
A will maker may became reliant on one person to conduct their daily affairs. In doing so the will maker may change their will in a way that benefits the influencer with no explanation to family members. Suspicion may arise around whether the will maker was unduly influenced into amending their will.
How to Prove Undue Influence
It is up to the person alleging undue influence occurred to prove to the court that the circumstances raise a more probable inference in favour of what is alleged than not. Evidence on the question must be evaluated as a whole (Nicholson v Knaggs  VSC 64). This means that a person who suspects undue influence must prove it to the court. They must show that it was more than likely that a person exercised pressure on the will maker to write and execute a will in a way that the will maker would not have written it if under their own free choice.
The key is whether someone exercised coercion over the will maker. It is not enough for the opportunity to arise to influence the will maker. It must be proven that:
• if the will maker had free choice, they would have drafted their will in a way that was different to the coercion of the influencer; and
• the influencer’s pressure overrode the will maker’s free will when drafting the will.
Court’s Response to Undue Influence Claims
It has been difficult to successfully argue that undue influence was exercised over a person to make their will. This is largely because the application to the court is made after the will maker dies. Therefore, the court must rely on statements made by witnesses who knew the will maker such as:
• healthcare providers and caregivers;
• family members; and
• lawyers, particularly the lawyer who drafted the will.
While the above persons can give evidence on the will maker’s ordinary course of thought, no one can truly determine whether the will maker was influenced to make the will other than the deceased will maker.
This means that if a person wants to make a claim for undue influence of a will in court, they must be reasonably certain that someone took active steps to pressure the will maker to make the will in a way the benefited the influencer. Subjective factors may be taken into account in determining whether undue influence was present, which includes:
• the deceased had made previous wills that dealt with the gift in a different way;
• if the will leaves a gift in a way that would not be normally expected and without reasonable explanation for the change;
• the will maker was reliant on the person who exercised the undue influence;
• the will maker was vulnerable to influence (for example they suffered an illness or were heavily dependant on someone who exercised undue influence);
• the person who exercised influence intervened in the will maker’s personal relationships and day to day matters (for example controlling who was allowed to visit the will maker); and
• the person who exercised influence over the will maker had contact with the will maker’s lawyer or financial planner when the will maker was making estate planning decisions, and family members were unaware of these visits.
Effect of Undue Influence
If undue influence can be successfully proven, then the provisions in the will that were unduly influenced will not be admitted into probate and will not be distributed in the way dealt with in the will. This can extend to the whole will being invalid if all the terms have been deemed to be unduly influenced. The court will make an appropriate order as to how the asset should be distributed which may include:
• whether it is dealt with in accordance with a previous will provision;
• whether it will form part of the deceased’s residual estate; or
• whether intestacy rules will apply.
If you have any questions or require assistance with undue influence in a will or updating your will in Queensland, please contact the property team at NB Lawyers for more information.
If you have any questions or require assistance with drafting or reviewing your wills in Queensland, please contact the property team at NB Lawyers for more information.
Kayleigh Swift, Associate
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
Chloe Skubis, Lawyer
Chloe Skubis is a Lawyer in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.