Undue Influence

Can you challenge a Will under undue influence?

Undue influence is when a person coerces someone into changing their Will to benefit themselves. Contesting a Will using undue influence looks at two possibilities:

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1. Lack of testamentary capacity

If you believe that the deceased may not have had the ability to make a Will or did not realise what they were signing, maybe as a result of:

  • an illness (e.g. dementia, cancer, depression)
  • medication they were taking causing confusion or them to be delirious

then the validity of the Will could potentially be challenged.

It could also be challenged if another person coerced the deceased into making their Will and that the terms of the Will does not reflect the deceased’s true wishes (they were unduly influenced).

2. Lack of knowledge or approval

For a Will to be valid, the testator (the person who made the Will) must have knowledge of the terms of the Will and approve its content. If they didn’t have the required knowledge and approval then the Will can be challenged and declared invalid.

Where there is a correctly executed Will, it is presumed that the testator had the required knowledge and approval of its terms. There are exceptions to this presumption, such as where the testator has a disability affecting their speech, hearing, eyesight, or their ability to write.

If there are suspicious circumstances surrounding the execution of the Will then the presumption of knowledge and approval will not apply. Homemade Wills are vulnerable to such a challenge.

There is often an overlap between challenging a Will on the grounds of lack of knowledge and approval, and a challenge made on the grounds of undue influence. the conduct and state of mind of the testator may be a relevant concern especially if they had they been behaving irrationally or acting out of character. Recent bereavement, depression, temporary confusion due to poor health (such as a urinary infection) can impact in their mental faculties, short of losing testamentary capacity altogether.

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