Challenging a will by alleging Undue Influence

Challenging a will by alleging Undue Influence

11:35 13 January in Blog, Dispute Resolution & Litigation, Walker Foster, Wills, Probate & Lasting Powers of Attorney

Challenges to a Will often involve issues of testamentary capacity, knowledge and approval and undue influence.

The execution of a Will as a result of undue influence is a fact that must be proved by those who assert it and in many cases can only be proven by inference from other proven facts rather than from direct witness evidence (often partisan). It’s a serious allegation and compelling evidence will be required to persuade the court that the testator’s will and wishes have been overpowered and he has not had freedom of action when making the Will. If evidence only establishes persuasion, then a case of undue influence will fail as the testator’s will has still been exercised. Persuasion does not equate to coercion.
 
“The fact of undue influence is in truth a complex of facts involving the establishment (by proof or inference) of the opportunity to exercise influence, the actual exercise of influence, the actual exercise of influence in relation to the Will, the demonstration that the influence was “undue” (i.e. went beyond persuasion), and that the Will before the Court was brought about by these means.” Norris J in Wharton v Bancroft [2011] EWHC 3250 (Ch).

Disputed Wills are complex and claims carry litigation and costs risks. Early expert advice from a solicitor with experience in such claims is advised.

Here at Walker Foster we have expertise and experience in these matters.

Contact Keith Hardington on 01756 700200 or [email protected]

Maxine Heppenstall

[email protected]