Helena Taylor, paralegal in the Gardner Leader dispute resolution team
One of the most important things any of us will ever have to do is make a will.
It ensures all of the valued assets we have attained during the course of our lives are dealt with according to our own wishes. Once a person has drafted their will, they are known in legal terms as the testator.
Sadly, wills are often challenged on the basis that someone has exercised undue influence over the testator. This unfortunate situation raises the question as to what amounts to undue influence.
Simply put, undue influence occurs when a person is pressured into acting other than by their own free will. The result is that the relevant will does not express the last wishes of the testator, but the wishes of another person.
As it is often elderly and potentially vulnerable people who are making or changing a will, it is clear why this is becoming such a common issue.
What are the problems with undue influence?
The bar for proving a claim of undue influence is exceptionally high. For a challenge to a will to succeed on this basis, the person challenging the will must be able to prove that the influence exercised over the testator was such that it
overpowered the testator’s discretion to make their own decisions.
It must be shown that there is no other explanation for the testator’s decisions and that they were not acting on their own free will. This burden of proof may be problematic, as the act of undue influence will often be a secretive one and will usually occur in private. Consequently, there is likely to be a lack of direct evidence.
In our experience, people often come to us with a strong sense of injustice in relation to the making of a loved one’s will.
They find it difficult to reconcile what they believe the testator wanted and what their will actually states (particularly when the testator leaves everything to someone they were not very close to).
What is being done to fix these problems?
In July 2017, the Law Commission acknowledged this issue and published proposals for reforming the law of wills. One of the key concerns addressed was whether the current law goes far enough to protect the vulnerable against undue influence.
As the UK expects dementia levels to rise to more than one million by 2025, this is an area of increasing concern for the law.
The Law Commission has proposed creating ‘a statutory doctrine of testamentary undue influence’. It suggests two possible doctrines; structured or discretionary.
Under the structured approach, a presumption of undue influence would be raised if there is a relationship of influence between the testator and a beneficiary (such as a medical adviser, a carer or a trustee) and the relevant bequest creates concern.
When deciding whether the bequest should be a cause for concern, the courts would consider the beneficiary’s conduct in relation to the testator’s decision and the circumstances in which it was made.
Under the discretionary approach, the courts could presume undue influence simply if they are satisfied that it is just to do so.
They would still consider the above criteria, but this approach has much more flexibility. It does not require precise factors in order to raise a challenge of undue influence.
The Law Commission now faces the decision as to whether the burden of proof should remain high and deter many cases from being brought, or lower it in order to protect the vulnerable, but risk superfluous cases reaching the courts.
It seems clear that the priority should be to ensure that the law does all it can to protect those in a vulnerable position and ensure their last wishes are their own. Any issues that stem from lowering the burden of proof should be secondary to the protection of the vulnerable.
The consultation is open until November 10, 2017, so it will soon be seen whether the Law Commission is in agreement with this view.
By Helena Taylor, paralegal in the Gardner Leader dispute resolution team