Elder Abuse and Undue Influence: Contesting the Will

Elder Abuse and Undue Influence: Contesting the Will
Posted on 3 Nov 2021

A significant way for someone to be impacted by elder abuse is where a family member, friend or carer helps an elderly or vulnerable person to change their will.   This may be considered elder abuse where the testator (that is the person making the will) was coerced or unduly influenced into making changes to their will that they didn’t want to make.  

Elder abuse may occur where a person was influenced or coerced into changing their will late in life leaving a significant portion, or the entire estate, to a particular child, friend or carer.  It may be particularly suspicious where:

  • the elderly person had several earlier wills which, for example, shared the estate equally between the children; 
  • a child or family member has been unexpectedly cut out of the will; or
  • a relatively new friend, carer or acquaintance of the testator now stands to inherit a portion of the estate, or all of it.

If the circumstances around the changing of a will seem suspicious, it may be that the testator was acting under the pressure or coercion of another.  If there is evidence to support that, then the court may be able to step in and decide whether or not the will is valid.  In circumstances where the court finds that the testator was unduly influenced, the court may order the suspicious will invalid and that the previous will is to take effect.

 

Is it undue influence?

Undue influence requires more than just pressure or simple persuasion.  There must be coercion, it must be shown that the testator did not intend or desire that particular distribution of their estate.  The free will of the testator must have been overborne.  

This coercion does not need to occur through violence or force.  The free will of a testator may be overborne in a situation where they can no longer endure the harassment or threats of the person trying to persuade them.  It may be that the testator simply feels they have to give in to keep the peace.  

The person who is alleging the undue influence is responsible for proving whether there has been undue pressure or coercion.  This can be difficult to prove.  The courts have set a high standard to prove undue influence.  Suspicion is not enough, there must be evidence.  

The following may be relevant to show that the testator was unduly influenced into changing their will.  If you consider that an overbearing relative, friend or carer:

  • bullied or intimidated the testator on occasion;
  • would not allow you or your family to visit the testator;
  • seemed to isolate the testator from their usual friends and support network; 
  • withheld food or care from the testator; or
  • generally took control over the testator’s life and influenced their decisions,

then you should speak with an estate litigation lawyer about whether there are grounds for the court to intervene.

 

It is important to realise that the undue influence of a testator will differ in each matter, there is no “one size fits all” rule.   The question of whether the threats or harassment were enough to coerce a testator into changing their will depends upon their individual circumstances and ability of the testator to refuse or endure the conduct.  For example, a son who withholds visits from his grandchildren may be an unbearable situation for one testator but not for another.  Also, isolation from family and friends may be difficult for one testator but a welcome break for another.  Each matter will be decided on its own relevant facts.

 

What can you do?

It is best to act quickly if you wish to contest the validity of the will.  While there are no strict timeframes for asking the court to determine the validity of the will, the executors are generally able to start to distribute the estate six months after death.  

If you think that a relative of yours has been unduly influenced into changing their will, our experienced estate litigation lawyers will be able to provide you with advice on whether you have grounds to contest the will.

 

1Wingrove v Wingrove (1885) 11 PD 81.

2Boyse v Rossborough (1857) 6 HLC .2

3Hall v Hall [1868] LR 1 P and D 481, 482.

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