Understanding Undue Influence in Will Making
Creating a will is one of the most important steps a person can take to ensure their wishes are carried out after their death. The law expects that a will reflects the true intentions of the person making it. But sometimes, especially when someone is vulnerable, another person may exert pressure or manipulate them into making decisions they wouldn’t otherwise make. This is called undue influence.
Undue influence occurs when someone is pressured, either subtly or overtly, into signing a will that does not reflect their genuine wishes. It can arise in situations where the will-maker is elderly, unwell, socially isolated, or relies heavily on someone for care, companionship, or assistance.
What Might Undue Influence Look Like?
It isn’t always easy to identify. Some warning signs include:
A will that unexpectedly benefits one person more than others, especially if this is a sudden change from past arrangements.
A new will prepared shortly before death, particularly if the person was physically or mentally frail.
A family member or carer who isolates the will-maker or insists on being present during legal appointments.
A situation where the contents of the will seem out of character or inconsistent with the will-maker’s known values and past behaviour.
It’s important to note that people are legally allowed to change their wills or favour one person over others. The concern only arises if the will-maker did not make that decision of their own free will.
What Can You Do if You Suspect Undue Influence?
If you believe someone was pressured into making their will, you may be able to challenge the will in court. In Victoria, this is done through the Supreme Court. However, time limits apply, so it’s important to seek legal advice without delay.
For a challenge to succeed, you will need to show that the will-maker was not acting freely when they signed the will. This can be difficult to prove.
The Need to Prove Pressure or Coercion
In law, the responsibility to prove undue influence lies with the person making the allegation. This means you must provide enough evidence to convince the court that the will-maker was coerced or manipulated into making the will.
Simply showing that someone was persuasive or stood to benefit financially isn’t enough. You must show that the influence was so overwhelming that the person making the will didn’t act voluntarily—they were effectively robbed of their ability to make an independent decision.
Evidence might include medical records, correspondence, witness statements, and the circumstances in which the will was made.
What Can Be Done to Prevent It?
If you’re worried a loved one may be vulnerable to influence, it’s best to act early:
Make sure they receive independent legal advice in private.
Keep records of anything that seems suspicious or unusual.
Stay connected and involved in their life to reduce the chance of isolation or control by others.
Undue influence undermines the integrity of a will and can lead to costly and emotionally difficult disputes. Although the legal system provides ways to challenge a will, proving undue influence is not straightforward.
If you have concerns about the validity of a loved one’s will—or if you’re creating your own will and want to ensure it stands up to scrutiny then Kenney Legal is here to help. We offer clear advice and trusted support in all areas of wills and estate law.
Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.