Challenging a will on grounds of undue influence

Yes, a will can be challenged on the ground that the deceased was subjected to undue influence when making it. This is one of the recognised grounds for contesting a will in England and Wales, though it is notoriously difficult to prove in practice.

The legal framework:

Undue influence in the context of wills means that someone coerced the testator (the person making the will) to such a degree that the will does not reflect the testator's own free wishes. It goes beyond mere persuasion, encouragement, or even nagging. The court must be satisfied that the pressure amounted to coercion that overpowered the testator's own volition, so that the will was not truly their own act.

This is distinct from the position in lifetime gifts and transactions, where a presumption of undue influence can arise from certain relationships. In the context of wills, there is no such presumption. The person challenging the will must positively prove that undue influence was actually exercised.

What the challenger must show:

1. That pressure was applied to the testator.
2. That the pressure was so significant that it overcame the testator's free will.
3. That the will, or specific provisions within it, resulted from that pressure rather than from the testator's genuine wishes.

The leading case is often cited as Wingrove v Wingrove (1885), where it was made clear that mere influence, even strong influence, is not enough. The influence must amount to force and coercion, destroying the testator's free agency.

More recently, the courts have acknowledged that undue influence can take subtler forms, particularly where the testator was elderly, frail, isolated, or dependent on the person exerting the pressure. The case of Edwards v Edwards (2007) confirmed that the court can draw inferences from circumstantial evidence rather than requiring direct proof, which was a helpful development for claimants.

Why it is difficult in practice:

The main witness, the testator, is dead by the time the challenge is brought. This means the challenger typically has to piece together the picture from surrounding circumstances, witness evidence about the testator's state of mind, the relationship dynamics, the degree of access the alleged influencer had, and how the will departed from earlier testamentary intentions or from what might reasonably have been expected.

The standard of proof is the civil standard, namely the balance of probabilities, but because an allegation of undue influence is serious, courts tend to require cogent evidence before finding it proved.

Related but distinct grounds:

It is worth noting that undue influence is separate from two other grounds that sometimes overlap in practice.

Lack of testamentary capacity, which means the testator did not have the mental ability to understand and make a will. This is governed by the test in Banks v Goodfellow (1870).

Lack of knowledge and approval, which means the testator did not know or approve the contents of the will. This can arise where someone else prepared the will and the testator simply signed it without understanding what it said.

In many contested cases, these grounds are pleaded alongside undue influence because the same factual circumstances, such as vulnerability, dependency, or cognitive decline, may support more than one argument.

Practical considerations if you are thinking of challenging:

1. Gather as much evidence as possible about the testator's state of mind, their relationship with the alleged influencer, any changes to their social circumstances such as becoming isolated, and any departures from earlier wills or expressed wishes.

2. Obtain medical records if there is any suggestion of cognitive decline or vulnerability, as these may support both undue influence and capacity arguments.

3. Speak to anyone who witnessed the testator's relationship with the alleged influencer, including family, friends, neighbours, carers, and the solicitor who prepared the will.

4. Consider whether the solicitor who prepared the will followed proper practice, such as seeing the testator alone and satisfying themselves that instructions were freely given. If they did, that may be a significant obstacle. If they did not, it may help your case.

5. Be aware that contesting a will through the courts is expensive, stressful, and can take a long time. Costs can be substantial, and the losing party may be ordered to pay the other side's costs, although the court has a discretion in probate cases and sometimes orders costs to come out of the estate.

6. Consider whether early negotiation or mediation might achieve a practical resolution without the need for a full trial. Many contested probate cases settle.

7. If you are an executor or a beneficiary under a previous will or under the intestacy rules, you may have standing to bring the claim. Standing is an important preliminary question.

Time limits:

There is no fixed limitation period in the same way as for contract or tort claims, but a challenge is normally raised by entering a caveat at the Probate Registry to prevent a grant of probate being issued, or by issuing a claim after the grant. Delay can be prejudicial to your case and may affect the court's willingness to entertain the challenge, so acting promptly is important.

If you can share more about the specific circumstances you are dealing with, I can give more tailored guidance on the strength of the position and the most sensible next steps.