Wills and undue influence

The grounds on which the terms of a Will can be set aside, because of the exertion of undue influence on the testator, have been clarified in Edwards v Edwards & others [2007] EWHC B4 (Ch).

Firstly, with a testamentary disposition, as opposed to a lifetime gift, there is no presumption at law of undue influence.

Secondly, the burden of proof rests with the person asserting that undue influence has been applied. The standard of proof is the civil standard, of the balance of probabilities, but the standard requires that the facts are proven to be consistent with the hypothesis of undue influence, and no other.

Thirdly, undue influence is that which is exercised either by coercion or by fraud.

Coercion is the exercising of pressure on the testator which overpowers the volition of the testator without convincing the testator's judgment, and should be distinguished from appeals to ties of affection, or pity for future destitution, which are legitimate. Coercion is, thus, the application of pressure which causes the testator to succumb for the sake of a quiet life. The physical and mental strength of the testator are relevant factors in determining how much pressure might cause him to succumb.

Fraud is where a person poisons the testator's mind against another person, who would otherwise be a natural beneficiary of the testator's estate, by casting dishonest dispersions on that person's character. Where such statements are made, and are known to be false, or where they are stated in circumstances where no care is given to whether they are true or false, the statements or representations are described as fraudulent calumnies.

Succession law assumes the testator acts as a free agent in making his will, and the law is concerned only with upholding this principle. Absent undue influence, the law is not concerned with the apparent fairness, or otherwise, to persons who are, or may have regarded themselves as, beneficiaries of the testator's estate.