Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue influence. Lewison J set out the principles applicable in uundue influence cases.
Lewison J summarised the law of undue influence: ‘there is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
(i) in the case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.
(iii) whether undue influence has procured the execution of the will is therefore a question of fact.
(iv) the burden of proving it lies on the person who asserts it. 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 the modern law this is perhaps no more than a reminder of the high burden even on the civil standard, that a Claimant bears improving undue influence is vitiating a testamentary disposition.
(v) in this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
(vi) coercion is pressure that overpowers the volition without convincing the testator’s judgement. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that over bears the testator’s free judgement, discretion or wishes, is enough to amount to coercion in this sense.
(vii) the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to over bear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case, simply to talk to a weak and feeble testator may so fatigued the brain that a sick person may be induced for quietness sake to do anything. A drip . . drip approach may be highly effective in sapping the will.
(viii) there is a separate ground for avoiding testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is fraudulent calumny. The basic idea is that if A price is the testator’s mind against B who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside.
(ix) the essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgement if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.
(x) the question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to sanitary powers of intervention, a testator may dispose of his estate as he wishes. The question in the end is whether in making his disposition the testator has acted as a free agent.’
Judges:
Lewison J
Citations:
[2007] EWHC B4 (Ch), [2007] WTLR 1387
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Wharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – Ram and Another v Chauhan and Another Misc 19-Jul-2017
Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Undue Influence
Updated: 10 July 2022; Ref: scu.251652
