This recent case is a timely reminder of the care that needs to be taken when writing a Will for older and/or vulnerable clients.
The case is also interesting in that it is a successful challenge to a Will solely on the basis of undue influence. This is rare. This is a case from the UK but the principles remain the same.
As is usually the case, the Will was also challenged on the basis of lack of testamentary capacity, lack of knowledge and approval, and fraud. However, these challenges were not successful.
In order to prove undue influence, the court had to be satisfied that the Will was a result of coercion – in the sense that ‘the testator’s will is overborne’.
The Court was satisfied that Anna had the requisite testamentary capacity at the time she gave instructions for and at execution of the 2015 Will. The Court found that Anna knew of and approved the contents of her 2015 Will – that Anna understood she was giving her main asset to Rita and leaving very little to her sons.
However, the Court found that Rita had pressured Anna into making a new Will and leaving the home to Rita, by applying some form of improper influence to procure the home and chopping out the sons.
In making that decision, the Court relied on the following factors:
Cases like this are very fact specific. However, this case is highly unusual in that the testator was found to have testamentary capacity, but the Will failed because of undue influence.
The case highlights serious challenges for any estate planning lawyer. In preparing the 2015 Will, the lawyer had taken steps to establish testamentary capacity. However, the Court found the lawyer and the doctor had not taken ‘any effective steps to ensure that Anna had been subjected to no undue pressure from Rita’. It is noted the lawyer did attempt to obtain the instructions from Anna without Rita being present and the Court did not specify what additional steps the lawyer should have taken in the circumstances.
Where the circumstances require it, steps need to be taken to rule out any improper influence. The case highlights that the estate planning lawyer:
The case also highlights that certain ‘red flags’ of improper influence may appear to the estate planning lawyer, including:
Assisting elderly or vulnerable clients in their estate planning often presents difficulties. An experienced and specialist estate planning lawyer should be consulted to avoid lengthy, expensive and family-destroying litigation.
The information contained in this article is for general information only and is not a substitute for specific advice. You should obtain specific and appropriate legal advice before any action or decision is taken on the basis of any of the information contained in this article.
Please contact us if you or your clients require any advice on the issues raised in this article.
On 3 November 2023 the NSW Personal Injury Commission released its decision in Hamid v Insurance Australia Ltd t/as NRMA Insurance  NSWPIC 157.
In the matter of Shaw v Insurance Australia Group Limited t/as NRMA Insurance  NSWSC 1273, the claimant alleged that a motor accident on 6 September 2018 caused whole person impairment greater than 10%.