Undue Influence: A Rare Success Story

• Law Firm: Wright Hassall
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud, Wills/ Intestacy/ Estate Planning
• Author: Ms Anna C. Sutcliffe
• Published date: 26 June 2023

The general position in the United Kingdom is that an adult of sound mind is free to leave their estate in accordance with their wishes.

There will be occasions (more frequently in the case of blended families) where there is concern and suspicion that a deceased's Will does not represent their genuine wishes. There are several well-established grounds for challenging the validity of the Will, namely:

• Lack of the requisite mental capacity;
• Want of knowledge and approval of the contents of the Will;
• Mistake;
• Undue influence;
• Fraudulent calumny;
• Forgery;

Testamentary Capacity

The well-established test to be applied in determining whether someone has testamentary capacity is that set out by Cockburn CJ in Banks v Goodfellow (1870) which stated that a person making a Will:

"a. Shall understand the nature of the act and its effects;

1. Shall understand the extent of the property of which he is disposing;
2. Shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object;
3. That no disorder of the mind shall poison his affections pervert his sense of right, or prevent the exercise of his natural faculties."

This test remains despite the coming into force of the Mental Capacity Act 2005.

It is good practice in order to avoid a challenge on the grounds of want of capacity to comply with the "Golden Rule". Briggs J (as he then was) in Key v Key [2010] summarised the substance of the Golden Rule as being:

"When a solicitor is instructed to prepare a Will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings..."

Knowledge and Approval

It is imperative that the person making the Will knew and approved of its contents and its effect when the Will was signed. Normally proof of instructions and reading over the Will will be sufficient to rebut a suspicion of want of knowledge and approval. The Court requires to be satisfied that the person understood they were making a Will, took a conscious decision to make it, and understood and approved its terms.

Mistake

It may be possible to rectify a Will that fails to properly record the testator's wishes as a result of a clerical error or failure to understand his/her intentions. Claims of this nature must be brought within 6 months of the grant of probate being extracted.

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