Killick v Pountney and Another; Re Killick Deceased: ChD 31 Mar 1999

Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their favour. The court was asked to deal with the matter on affidavit evidence alone, the first defendant failing to appear to give evidence to defend the will.
Held: A judge in a contested probate case had an inquisitorial function seeking truth, and should be ready to see through attempts to manoeuvre the court. It was for a party who asserted undue influence to prove it. Where there was evidence of improper influence, the additional presence of some enfeeblement in the testator would make it easier to find that such influence was ‘undue’, but evidence of such infirmity does not itself establish undue influence. Adverse inferences should not normally be drawn, but the facts here allowed such an inference of undue influence. The fact that the defendant did not appear at court was not conclusive against him.

James Munby QC
Times 30-Apr-1999, Independent 10-May-1999, (2000) 1 WTLR 41
CitedBoyse v Rossborough HL 1857
In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .
CitedHall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
CitedWingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
CitedCraig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
CitedFreeman v Cox 1878
. .

Cited by:
CitedWharton 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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 05 January 2022; Ref: scu.82774