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What is Undue Influence on a Will-Maker & How To Protect Your Loved Ones

Undue influence over vulnerable Will-makers is a serious issue, affecting thousands of Australians. Ethically unjust and legally unacceptable, it's a form of coercion which often comes from the inside. From caregivers to legal professionals, bitter family members to 'new friends', it's important to be wary when the wrong people show interest in your loved ones' Will. In this blog post, we cover exactly what undue influence is, how to spot it and what to do if you suspect foul play.

Protecting elderly

What Is Undue Influence In Simple Terms?

Undue influence involves one dominant party exerting undue pressure or influence over another party, in a way which deprives the other party of their free will and ability to make independent decisions. It can involve various forms of manipulation, coercion, or intimidation from someone in a position of power over the victim.

What Is Undue Influence Towards a Will-Maker?

Undue influence towards a Will-maker involves someone exerting pressure or coercion to the point where the Will-maker's freedom to make independent decisions is compromised.

Whilst friends or special relationships might have yielded positive influence or support in the Will writing process, undue influence refers to threatening manipulation, where the presumption is that the intentions of the influencer were perverse.

Examples Of Where Undue Influence Occur:

Undue influence is, sadly, often used to take advantage of vulnerable individuals. This frequently involves the elderly, however it can take many forms. Below are some examples of situations where undue influence may occur:

  1. An elderly person who is dependent on a caregiver or family member may be unduly influenced to make changes to their Will which benefit the caregiver or family member.

  2. A family member who is financially dependent on the Will-maker may exercise undue influence to ensure they receive a larger share of the estate.

  3. An attorney, financial advisor, doctor, or other professional who is in a position of trust and authority over the Will-maker may exert undue influence to have themselves named as a beneficiary or obtain a larger fee.

  4. A beneficiary, such as a spouse of child, who already stands to inherit a large share of the estate may exert undue influence on the Will-maker to increase this share, or prevent other beneficiaries from receiving a fair share.

Distinguishing Undue Pressure vs A 'Special Relationship'?

A 'special relationship' is a legal term which safeguards a trusted relation's influence over a Will. Whether between a Will-maker and a beneficiary, or someone involved in the execution of the Will, this relationship and influence is distinct from undue influence in that it is characterised by trust and confidence, rather than coercion and manipulation.

In the eyes of the law, this relation has a green light to assist on Will writing, with the key assumption that this person has the best interests of the Will-maker at heart.

How Does Undue Influence Differ From Fraud, or Duress?

Undue influence comes under an umbrella of terms, and circumstances, that can affect the validity of a Will. These include fraud and duress, which despite having similar outcomes, represent distinct concepts. Crucially:

  • Undue influence involves abuse of power from a person in authority

  • Fraud is more overt and involves intentional misrepresentation or concealment of material facts from one party to the victim

  • Duress can be more overt still- referring to a situation where a Will-maker is forced or threatened into making a Will against their will using physical or emotional pressure; such as blackmail of threats of violence

The key difference between these concepts is the nature of the pressure or influence exerted on the Will-maker. What makes undue influence so dangerous for the victim, is the subtle nature of this pressure, and the fact it hides behind an existing relationship.

Below, we cover the two different types of undue influence to help you identify this injustice for your loved ones.

Different Types of Undue Influence

Presumed Undue Influence

Presumed undue influence is all about the circumstances surrounding the creation of a Will. A claim of this influence occurs when there is a presumption that someone exerted undue pressure on the Will-maker, to personally benefit from the Will.

An example of presumed undue influence would be in the case of elder abuse- whereby a Will created by a dependent elderly person identifies their daily caregiver as a key beneficiary.

Where this person stands to receive substantial amounts of money or benefit from the Will, a presumption of undue influence may arise. This is especially relevant in a situation where the caregiver holds a position of power over the elderly person, and a risk of non-compliance may have pressured the elderly victim in their Will writing.

Actual Undue Influence

In contrast actual undue influence occurs to claims backed by evidence that the Will-maker was coerced, manipulated, or pressured into making the Will in a particular way.

Actual undue influence requires proof that the Will-maker's free will and ability to make independent decisions was compromised. With the burden of proving actual undue influence falling on the party challenging the validity of the unfair Will.

The Key Takeaways on the Difference: Actual vs Presumed Undue Influence on a Will?

Presumed undue influence is inferred from the circumstances surrounding the creation of a Will, whilst actual undue influence requires specific proof of actions by other parties which prove this pressure or coercion have taken place.

What Happens Next, if Undue Influence is Established?

If it is deemed that someone exerted undue influence on the Will writer, then parts, or the entire legal document can be rendered invalid. If in the eyes of the courts, the unduly influenced have not been able to express their wishes amid presumed undue pressure, then determining distribution of this person's assets via this Will will be deemed impossible.

Next Steps With Presumed Undue Influence

With presumed undue influence, the burden of proof may shift to the party benefiting from the Will, or the legal document, to prove that the document was validly executed and that the Will-maker had full capacity.

If that party cannot provide sufficient evidence to overcome the presumption, the court may find that the Will or legal document is invalid, in whole or in part.

Next Steps With Actual Undue Influence

If actual undue influence is established, the court may exercise the right to invalidate the Will, in whole or in part. In light of evidence of certain types of coercion, the court may also take other actions- such as imposing sanctions or awarding damages. This will depend on the specific facts and laws applicable to the case.

In some extreme cases, the court may also consider the possibility of criminal charges if the undue influence amounted to fraud or other criminal conduct.

When a New Will is Required

In either case, the court's decision will be based on the specific facts and evidence presented in the case, as well as the applicable laws and precedents. In some cases, the court may also order that a new will be drafted, which reflects the true intentions of the Will-maker.

The specific outcome will depend on the circumstances of the case and the extent to which the Will was influenced. The relationship to any relevant parties or beneficiary may then hold up in an updated Will- for example if the Will included instructions on asset distribution to children.

Identifying and Reporting Undue Influence

How to Spot Signs of Undue Influence in Will Writing

You may have a relationship with someone in your life who could be vulnerable to undue influence. It can be a subtle form of influence, and so it's important to note signs early to bring to the courts at a later date.

Here are some key indicators that undue influence may be being inflicted upon a Will writer:

  1. Concerning change in Will writer's behaviour

  2. Unusual and unexpected provisions to authority figures in the Will

  3. Inappropriate interest of strangers

  4. Isolation or dependency of the Will-maker to caregivers

  5. Uncharacteristic, unexplained unequal treatment of beneficiaries

Undue influence is a serious concern when it comes to looking out for a parent or vulnerable person in your life. If you suspect that undue influence has occurred, it's important to seek legal advice.

How to Prove Undue Influence and Pressure on a Will-Maker?

An experienced attorney can help you investigate your concerns further. However, to help your attorney take appropriate action to the next stage, it can be useful to gather evidence to demonstrate the influence of a dominant party.

This will help hold up your claim in the eyes of the law, and assist your attorney in their efforts to protect you and your loved ones rights.

How Safewill Can Help

Safewill offers an affordable, flexible and easy way to make your Will online. This allows you to assist and support your loved one in making their wishes clear; empowering them to use their autonomy to do so. You'll even be supported by legal professionals, and a team of Will experts overseeing the process at each stage.

To discuss further how we can help you in your time of need, call us on 1800 103 310 , or via live chat now.

Last updated 14th February 2023
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Hannah Comiskey
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