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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Undue Influence In Wills


Undue influence involves the exploitation of a relationship of influence. In relation to wills, it involves a person convincing a testator (will-maker) to favour that person to the detriment of others. It occurs most often when the testator is vulnerable and dependent on others, such as when a person is elderly or ill.

A will can be challenged on the grounds of undue influence, and the will can be invalidated if it is proven. However, undue influence in relation to a person making or changing their will is very difficult to prove. The burden rests with the person making the allegation.

Actual and presumed undue influence

Actual undue influence is when a person can prove that another person exerted influence over the making of a will.

Presumed undue influence is when there is a relationship which raises the presumption that influence has been exercised, or where it can be shown that a person had such trust and confidence in someone that a presumption of influence should be made.

Presumed relationships of influence include those between a religious leader and disciple, solicitor and client, and doctor and patient.

Proving undue influence

If undue influence is suspected, the complainant must contest the will in court after the testator dies. The complainant will need to show that:

  • the will assigned property in a way that was unexpected in the circumstances;
  • the testator was dependent on or trusted the person who exerted influence;
  • illness or frailty left the testator vulnerable to undue influence;
  • the person took advantage of the testator and benefited from the distribution of assets under the will.

Undue influence is particularly hard to prove because the testator is not alive to testify as to their reasons and motivations for distributing their assets in the way they did. The court must rely on witnesses to the relationship between the testator and the person of influence. Witnesses can include family members, health professionals, caregivers, accountants and lawyers.

Further, undue influence requires coercion to be established. In the leading British case of Wingrove v Wingrove, which has been endorsed by Australian courts, the judge stated:

“The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage or illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything.  This would equally be coercion though not actual violence.”

Rebutting the presumption

To rebut the presumption of undue influence, it must be established that:

  • the testator knew and understood what they were doing; and
  • that they were acting independently of the influence of another person.

One factor in determining independent action is whether the plaintiff received  competent and well-informed advice, and whether they had sufficient time to consider that advice.

Case examples

These two cases show how the court assesses whether undue influence has been exerted.

Nicholson v Knaggs (2009)

This Victorian case examined the will of 84-year-old testator Betty Dyke. Dyke, who was suffering dementia, died in 2004 having almost $16,000,000 in assets. In 1985 she had made a will leaving the bulk of her estate to specific charities. In 1999 and 2001 she made two more wills which were considerably different from her 1985 will. The later wills left the bulk of her estate to three groups of neighbours and slashed the amount of money to be donated to her nominated charities. The court ruled two of Dyke’s neighbours had exerted undue influence over Dyke when she created her later wills. It ordered the clause in the most recent will that was subject to undue influence be severed and the rest of the will be considered valid.

Birt v The Public Trustee of Queensland [2013]

This Queensland case examined whether there was undue influence involved in the making of the will of 86-year-old testator Patricia Brooks. Brooks, who was suffering dementia, died in 2010, survived by two daughters and a son. A will made in 2004 left her entire estate to her son, with a gift to one daughter. A will made in 1990 had left her estate to her children in equal shares. The sisters argued that their brother, who lived with their mother, exerted undue influence over their mother via behaviour that included verbal abuse, bullying and letting friends steal from her. The judge ruled there was no evidence that the brother had convinced their mother to change her will to leave her entire estate to him.

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