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 be undue influence in the eyes of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quiteness’ sake, to do anything. This would equally be coercion, though not actual violence.
These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such condition, that if he could speak his wishes to the last, he would say ‘this is not my wish, but I must do it’.
There remains another general observation that I must make and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’
Sir James Hannen
[1885] 11 PD 81, [1885] UKLawRpPro 46
Commonlii
England and Wales
Cited by:
Cited – 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 . .
Approved – Baudains v Richardson PC 1906
The Board considered the quality of the influence necessary to establish undue influence: ‘Influence may be degrading and pernicious and yet not undue influence in the eyes of the law’ . .
Cited – Craig 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 . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – In re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
Cited – Ark and Others v Kaur and Others ChD 17-Sep-2010
The proponents sought to have the will (executed in India) admitted to probate. The daughters denied that he had executed it. The court heard detailed explanations of the procedures said to have been undertaken for the making and execution of the . .
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 . .
Lists of cited by and citing cases may be incomplete.
Undue Influence, Wills and Probate
Updated: 05 January 2022; Ref: scu.188024
