Undue influence is an equitable doctrine that involves one person taking advantage of a position of influence over another person. It is a method to attack the validity of both lifetime gifts and wills and is becoming more common.

The courts have taken different approaches when dealing with undue influence in the context of wills and lifetime gifts. It is easier to make a successful claim for undue influence in respect of a lifetime transaction because a presumption of undue influence often exists, but this is not the case in relation to gifts by will.

Undue Influence – Lifetime Gifts

There is a presumption of undue influence for lifetime gifts where there is a relationship of trust and confidence and also a transaction which calls for an explanation.

There are certain relationships where the law automatically assumes that there is a relationship of trust and confidence, such as that between parent and child, solicitor and client or medical adviser and patient. It also needs to be shown that the size and nature of the gift calls for an explanation. Once these requirements have been established, the burden then shifts to the alleged wrongdoer who has to show that on the balance of probabilities the transaction was entered into by the influenced person after giving it “full, free and informed thought.”

Undue Influence – Wills

It is more difficult to succeed in a claim for undue influence in relation to wills since the deceased, who is the primary witness, cannot make representations to the court about the circumstances surrounding the making of the will. Whoever makes the allegation has the burden of proving it and this can be difficult without clear evidence.

In Hubbard v Scott [2011] EWHC 2750, Albert was a childless widower who had previously chosen the two daughters of a friend of his to benefit under his will. Mrs Kruk began cleaning for him in 2006 and the two of them got along very well. Albert then decided to make a new will in September 2009 benefiting Mrs Kruk. This will was prepared by a solicitor who saw Albert at a meeting with Mrs Kruk and a friend of hers. At the time of the meeting, Albert was light humoured when providing his instructions to leave everything to Mrs Kruk and at one point he joked about marrying her. When Albert died in October 2009, it was alleged that Mrs Kruk had exerted influence over him to coerce him into revoking the previous will.

It was confirmed by the court that there was no automatic presumption of undue influence for will matters. It was necessary to show that Mrs Kruk overbore Albert’s free will to the point that he had no option but to make the 2009 will in her favour. It was held that the case fell short of what was necessary to establish coercion since legitimate persuasion has never been considered the same as unlawful pressure. The fact that Mrs Kruk may have made appeals to him for money was not a factor that swayed the court’s decision.

This case highlights the substantially high threshold which has to be overcome before an argument for undue influence in respect of a will can be made. A court has to be satisfied that the person making the will was influenced to such an extent that they were effectively forced to go against their own wishes.

It is worth pointing out that if an unsuccessful claim of undue influence is made, an adverse costs order is likely to be made against the unsuccessful party. An allegation should not be made lightly.

If you would like to discuss undue influence in the context of a gift or a will, please call Paul Davis on 0116 289 7000.

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