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Having an undue influence on wills

Legal question time with Gardner Leader

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Having an undue influence on wills

Tara McInnes, senior associate in the Gardner Leader dispute resolution team

THE High Court ruled last week in favour of the widow of a fund-manager, who died in 2013, leaving an estate valued at £18m.

Richard Thornton executed a will in 2009, leaving half of his estate to his second wife, with the remaining half being held in trust for his family, including his three adult children from his first marriage and grandchildren.

Mr Thornton’s daughters disputed the validity of the 2009 will, claiming that Mr Thornton was under the undue influence of his second wife at the time he changed his will.

Having been presented with all the facts, the High Court rejected the daughters’ claims, having been satisfied that Mr Thornton was financially astute, who had reasonably and independently balanced objectives of the trusts and the prospect of making long-term IHT savings when he made the changes to his will in 2009.

Undue influence

In some instances family members or those in a position of trust such as professional carers, accountants or solicitors, can have an amount of influence over those people they provide care or advice to, particularly those who are vulnerable.

Unfortunately, in some instances this position of trust is abused and pressure is put on those who are vulnerable to do something to their detriment (for instance to change their will).

The burden of proof lies with the person bringing the claim of undue influence.

The law is clear that the influence must be more than mere persuasion and there must have been an element of threat, blackmail or coercion to the extent that the testator thinks he has no other choice but to do what that person requires of him, even if it is not his intention, before a finding of undue influence can be made.

Suspicions

Suspicions suggesting undue influence involve situations where the main beneficiary has been involved in the preparation of the will he inherits under, or where a beneficiary was present at the time initial will instructions were given, or indeed if they took a central role during the will preparation process.

However, undue influence is very hard to prove as the influence usually takes place in private and behind closed doors and there are usually few witnesses, if at all.

Further suspicions of undue influence can arise where a testator suddenly makes radical changes to a will, without explanation, and which do not correspond with any wish contained in previous wills. Or where the will comprises language or statements which appear out of character for the testator.

The law – what needs to be demonstrated

There is a high legal threshold to be satisfied when bringing undue influence claims.

The person making such allegations must demonstrate, with the use of strong evidence, that actual undue influence occurred.

Each case is always judged on its own merits.

However, as highlighted in the case involving the fund manager, the number of successful cases are typically very limited on account of the high legal threshold required to succeed with a case and courts are unwilling to find undue influence cases where there is insufficient, clear and strong evidence.

This case involving the estate of the fund manager also supports the need to document events very carefully prior to someone’s death to avoid any later accusations.

It also serves as a reminder that if a patient or client approaches you for advice or requests an opinion that you feel uncomfortable or unqualified to give, particularly concerning their finances or legal affairs, gently suggest that they seek independent legal advice.

If you find yourself in a situation where you suspect a patient or client has been the victim of undue influence, or are being accused of undue influence yourself, it is imperative you seek urgent independent legal advice.

Thornton & Ors v Woodhouse & Ano [2017] EWHC 769 (Ch)

For more information, contact Tara McInnes, senior associate in the Gardner Leader dispute resolution team on (01635) 508194 or email t.mcinnes@gardner-leader.co.uk

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