Undue influence is considered to be a form of coercion. Coercion is the intimidation of a victim, to compel the individual to do some act against his or her will by the use of psychological pressure, physical force, or threats. In the context of Wills, coercion is present when a testator is forced by another, to make provision within his or her Will, which they otherwise would not have made, were they acting according to their own free will.
Fraudulent calumny is a specific kind of coercion, which is involves a more subtle form of influence. In such cases, the testator makes their Will of their own free will, however their perceived perception of a potential beneficiary of their estate is changed by another, who knows such representations to the testator to be false. Such comments induce the testator to leave more to the perpetrator of the false representation, or to leave no money, to the potential beneficiary.
Proving undue influence
When contesting a Will, the person making the allegation must be able to prove that undue influence was exerted upon the testator. There is a high evidential burden that claimants need to surmount in proving undue influence successfully.
In Edwards v Edwards , the Court set out the following criteria for undue influence:
The facts are inconsistent with any other hypothesis;
Undue influence means influence exercised by coercion (the Deceased’s own discretion and judgement is overborne) or fraud;
Coercion is pressure that overpowers the testator’s own wishes without actually changing their mind;
The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overpower the Will;
The person making the Will has not acted as a free agent in making their dispositions.
Should you require any further advice or assistance on contesting a Will, please call Hewitsons today on 0330 311 0885, to speak to one of our solicitors. We offer a free initial consultation, to all new clients, lasting up to 30 minutes. Alternatively, please complete our online form and a member of our team will be in touch to discuss your enquiry.