Under duress: What to do if you think a will has been made with undue influence

Sadly, many people experience some form of dispute when it comes to wills and inheritance. A common reason for a dispute claim is undue influence. Often difficult to recognise, and most likely to have happened behind closed doors, it can be a challenge to provide clear evidence for a claim. In this blog, we will look at what undue influence means, how to prove it, and what your next steps should be if you suspect undue influence.

What is under duress/undue influence?

Under duress or having made a will with undue influence means that a person has been coerced into making or changing their will to benefit the beneficiary. Usually this is carried out by someone in a position of trust.

How do you contest a will on the grounds of undue influence?

The process for contesting a will is as follows:
1. Seek legal advice immediately so you can get the best advice and that your claim can be made in the time allowed.
2. Prepare and submit a claim to the Probate Registry office. Known as a caveat, the claim will prevent the issue of the grant of probate or letters of administration.
3. The case will be heard in court, where the claimant will have to provide clear evidence that the testator was coerced into making or changing a will.

How do you prove it?

This can be the tricky part; you need to provide clear evidence that the will has been made with undue influence to make a claim. There is a difference between influence and undue influence which is described as coercion or with force.

Among other things, a court will be looking for evidence that:
• The estate has been bequeathed in an unexpected way
• There has been a significant change that has been made to benefit one beneficiary.
• No provisions have been made for close family members, but others who are unexpected have benefitted considerably.
• The capacity of the testator and whether they have been more susceptible to undue influence.
• Whether a solicitor was involved in the will making process and any evidence sought from people who knew the person who made the will, such as medical professionals, family members or carers on the relationship between the testator and the beneficiary.

If the court decides that there was undue influence, then the will would become invalid and either an earlier version of the will, will be used or the estate will pass according to the intestacy rules.

It is incredibly important that you seek advice from a solicitor should you suspect undue influence.

How can it be prevented?

When making a will, it is very important to use a reputable, knowledgeable solicitor. Will writers have a responsibility to spot any signs that might reflect undue influence and will take relevant steps with their client to protect their interests. It is also advisable to have a Lasting Power of Attorney (LPA), who can make decisions about your finances or health and welfare if you cannot due to ill health.