|
Disputed inheritance claims are on the rise, and among the most common reasons for bringing a claim is alleged undue influence. That refers to a situation when one person coerces another into making or changing their Will to benefit them.
Undue influence is something that a solicitor drafting a Will must be alert to. However, by its very nature, it tends to happen out of sight and can be difficult to spot. In most cases, the person exerting pressure is in a position of trust, for example, a partner, child, friend, or carer.
Red flags
The type of behaviour that should raise a red flag is a client changing a Will in a way that seems surprising or out of character. It may be that the Will is:
- unexpected or requested with particular urgency.
- considerably different to the client’s wishes expressed in the past.
- detrimental to the client’s estate.
There may be cause for concern if:
- there is a new (and possibly unexpected) beneficiary.
- a beneficiary’s inheritance has increased significantly.
- the client is dependent on the beneficiary when making the changes.
- the client is frail or unwell and, therefore, possibly more susceptible to forceful persuasion.
What to do if undue influence is suspected
It’s important to stress that the law recognises the difference between ‘influence’, which is perfectly legitimate, and ‘undue influence’, where a line is crossed. In an old but much-quoted case – Wingrove v Wingrove [1885] – undue influence was defined as: “to be undue influence in the eye of the law there must be – to sum it up in one word – coercion”.
For the person drafting the Will, a suspicion of undue influence puts them in a difficult position and potentially in conflict with their client. They should tread carefully, and their approach will depend entirely on the particular circumstances.
Unless it’s inappropriate to do so, a client should be seen without others present. In that way, a diplomatic discussion with them may crystallise any suspicion or, conversely, provide reassurance that this is not a case of undue influence. In any event, the solicitor should make a detailed and contemporaneous note of the discussion.
Sometimes, a formal capacity assessment is appropriate. As part of the assessment of testamentary capacity, the independent assessor should consider possible issues of undue influence.