When the Wolves Descend – Suspicious Circumstances or Undue Influence and Wills — Brown Wright Stein Lawyers | Sydney Lawyers - Tax Specialist Lawyers, Corporate & Commercial Lawyers..

Ever thought that one of the more mature members of your family might be easily misled or influenced by another family member or acquaintance? If so, is it possible that they could be taken advantage of and unduly influenced to do something that they would not ordinarily do?

What if your family member is coerced into executing a will that disposes of their assets in a way that is contrary to their actual wishes?

Challenging a will

A testator is required to be of sound mind at the time of giving instructions for their will and when signing that will. If however, there are sufficient suspicious circumstances showing that the will does not accord with the person's wishes, the Court will not admit the will to probate. If the person has been unduly influenced the will can be challenged and set aside by a Court.

Suspicious circumstances

If the Court is of the opinion that circumstances exist that give rise to a suspicion that the terms of a will do not accord with the testamentary intention of a testator, the Court will not admit the will to probate unless the suspicion is removed and the Court is satisfied the testator knew and approved the contents of the will.

The person who has the onus of proving that the testator knew and approved the contents of the will is the person requesting the Court to admit the will to probate.

The degree of suspicion will vary depending on the circumstances of each matter.

Circumstances that may give rise to suspicions include the following:

the testator was elderly;
the testator was living alone;
the testator was not in regular contact with family members;
the testator was in regular contact with the person who became the principal beneficiary under the will;
the testator did not give the instructions for the draft will.

Suspicious circumstances can be rebutted by satisfying the Court that the testator had the capacity to make the will at the time of giving the instructions and executing the will, and that the testator knew and understood the terms of the will. This can generally be satisfied by evidence from the witnesses to the will and medical evidence from treating doctors (where appropriate).

Undue influence

Unfortunately, these days elder abuse is on the rise. One form of elder abuse is bringing undue influence to bear on a testator so that they make a will which is not in accordance with their wishes.

Generally speaking, when it comes to wills and probate, undue influence is akin to coercion. In order to establish that a testator has been unduly influenced:

circumstantial evidence is not enough;
you must be able to prove actual undue influence/coercion; and
it is not enough to show that a person had the power to overbear someone - you will need to show that they actually exercised that power and that it resulted in the production of a will that is not what the testator wanted.

The Court will examine and determine each allegation of undue influence based on consideration of all the circumstances of the matter.

The principles of undue influence are narrowly interpreted and strictly applied.

There are many examples of cases where the Court has been asked to consider the validity of a will based on undue influence in New South Wales - some recent examples include Tobin v Ezekiel [2012] NSWCA 285 and Blendell v Byrne [2019] NSWSC 583. What all of these cases tell us is that to prove undue influence, you will need to satisfy the Court that the deceased did not know and did not approve the contents of the will.

If you think your loved one has been unduly influenced and would like more information, please contact Snezana Vojvodic or Cherrie Homer.

For further articles on estate disputes, please see:

The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.