Overcoming Challenges In Getting A Will Declared Invalid In Law

Most contentious probate practitioners will testify to the difficulty in bringing a case that a will is invalid due to undue influence. These types of legal claims are incredibly challenging, demand substantial evidence to support the assertion, and the burden of proof lies with the claimant. However, in exceptional cases, these claims can be successful.

The difficulty in bringing a case of undue influence and getting a will declared invalid is largely in part because courts seek to protect the testamentary freedom of the testator to entail their estate freely without retrospective interference.

The case of Edwards v Edwards [2007] Lewison J provided a summary of the law on undue influence, which is as follows:-

1. In a case of testamentary disposition of assets, basically deciding who gets what after someone passes away, unlike a lifetime disposition, there is no presumption of undue influence
2. Whether undue influence has procured the execution of a will is therefore a question of fact
3. The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. It must be shown that the facts are inconsistent with any other hypothesis. In modern law, this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as spoiling a testamentary disposition.
4. In this context undue influence means influence exercised either by coercion, in the sense, that the testator's will must be overborne, or by fraud
5. Coercion is pressure that overpowers their free choice, without convincing the testator's judgment. It is also to be distinguished from mere persuasion
6. If someone uses emotional appeals, like love or pity, to influence a person's decisions about their will, it's completely legal. However, if the pressure becomes so intense that it overpowers the person's ability to think clearly and make their own choices, it's considered coercion.
7. The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a fit and healthy one. In some cases, simply talking too much or putting pressure on a vulnerable person can exhaust their mind. A sick person might agree to do something just to avoid more stress and arguments.. A "drip drop" approach may be highly effective in sapping the will
8. The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent."

While the rules on undue influence cases can make it difficult for cases of this nature to be brought, the recent Jones & Ors v Jones ruling saw the rare occurrence occur.

In this case, the court held that the testator's will was invalid on the basis of undue influence. The background of the case concerned Mrs Daphne Jones who passed away in hospital aged 82. Her death certificate recorded various causes of death including Covid-19, dementia and a stroke. The deceased was survived by three of her daughters (one daughter, Vicky, having predeceased her) and eight grandchildren and seven great-grandchildren.

Mrs Jones signed her will on July, 4, 2021. Her will was witnessed by her neighbour, Pauline, and a chartered accountant called Neil. The entirety of her estate consisted of a property and some savings and personal effects were bequeathed to her daughter Ceri.

Two of the deceased's daughters and Vicky's children challenged her will on the basis of the undue influence that Ceri asserted over their mother/grandmother. They subsequently issued proceedings given that Ceri sought to defend the validity of the will.

There was evidence to suggest that Mrs Jones had indicated to her brother Edwin, that she was uncertain what to do with her will and that Edwin had arranged for a solicitor to visit her. However, Mrs Jones decided not to proceed further and instead relied on Ceri to organise a will appointment for her. Ceri was also living with her mother at this time.

Witness evidence was provided apropos the relationship between Ceri and her mother following Vicky's death. It was suggested that Mrs Jones had changed and that she would look to Ceri for approval before she said anything or not speak at all and allow Ceri to speak on her behalf instead. It was also becoming increasingly difficult to speak with Mrs Jones on the telephone and Ceri would make excuses as to why Mrs Jones could not come to the phone. Even on those occasions when Mrs Jones would come to the phone, she was heard seeking Ceri's permission to do so. It was further asserted that Ceri caused arguments and controlled Mrs Jones in every aspect of her life including what Mrs Jones was eating.

Ceri's defence in response to the witness evidence was that her mother's contact with her family was strained, but that is what Mrs Jones wanted and did not result from undue influence.

Having considered the evidence, the Judge concluded that Ceri had sought to inherit her mother's house but that it was her mother's settled intention to leave her estate to her four daughters in equal shares. The judge held that Mrs Jones was likely still in the grieving process when she signed the will and that from the time Ceri moved in with her mother, she increasingly sought to isolate her from the other members of the family. The judge stated that whilst Ceri acted in a way she thought was appropriate to do in the circumstances, the only conclusion to be drawn is that what occurred went far beyond persuasion. Accordingly, the will was declared invalid and as a result Mrs Jones died intestate and the estate would be distributed in accordance with intestacy law, which would mean her daughters would inherit the estate in equal shares.

The case of Jones & Ors showcases the rare, yet not impossible, instances in which a case brought before the courts on the basis of undue influence can see a will declared invalid.

Originally published 6 October 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.