There have been a considerable number of cases over the last couple of years in which families (mainly) have sought to have wills invalidated, alleging that the will was written under the ‘undue influence’ of someone close to the testator.
The law recognises that some people (such as solicitors or accountants) have a high degree of influence over their clients, since clients use their professional advisers for the specific purpose of obtaining advice. However, it is not normally with regard to professional advice that undue influence claims come into being. Normally, such allegations arise when someone has been influenced by another person to do something which is to the first person's detriment and which normally is for the benefit of the other.
In ordinary relationships it is hard to demonstrate that undue influence exists. To do so, the person asserting that undue influence has been exercised must demonstrate in regard to the transaction in question that:
· trust and confidence were placed in the defendant; and
· the transaction is not readily explicable bearing in mind the relationship subsisting between the parties.
The courts have over the years addressed themselves to this issue many times, but with the circumstances of each case varying substantially, it is difficult to establish anything more than general principles. The most important of these are that one must look at both the nature of the transaction and at the relationship between the parties to transfer to the defendant the burden of proof that undue influence was not applied.
Says Mark Bowen, “Where the creation of or changes to a will are being contemplated, the most sensible approach is to take independent professional advice. We can advise you how best to make sure your will reflects your wishes and will stand up in court.”