LAMTo make a valid Will a person must be of sound mind when the Will is made. Where a Will is the product of undue influence then it may be declared invalid if undue influence can be proven by the person alleging it. Undue influence goes beyond mere persuasion. “The essence of undue influence is coercion of the will so that the [Willmaker] does that he or she does not desire to do”. One recent Victorian case refused an application that there was undue influence exerted over the Willmaker when she made her Will.

In 2015 the deceased died at the age of 91 survived by 3 adult sons. The deceased made a Will in 2013 whereby she appointed a family friend and one of her sons as the executors of her Will. The deceased left her residuary estate to be divided between her three sons as to 20 percent, 35 percent and 45 percent respectively. The son who received only 20 percent of his mother’s estate applied to the Court alleging that the 2013 Will was invalid because it was obtained as a result of the undue influence of his two brothers who had the care and control of his mother before she died.

An allegation of undue influence is a serious matter and must be proved on the balance of probabilities and supported by full particulars. “To prove undue influence, it must be shown that the [Willmaker] did not intend and desire the disposition. It must be shown that she has been coerced into making it”.

The applicant son relied on the following matters:

(a) the applicant son placed the deceased in residential care in October 2012;

(b) some four weeks into her stay in residential care, one of his brothers removed her from residential care;

(c) thereafter the deceased was under that same brothers ‘care and control’; and

(d) the deceased executed her Will when she was being kept substantially isolated from the applicant son until her death.

Applying the test of undue influence to the particulars in this case the Court stated “there is no allegation of influence let alone that the influence was undue. There is no allegation that, in making the dispositions under the 2013 Will, the [will maker] was coerced or that her will was overborne in circumstances that her judgment was not convinced”.

It is important to note “the fact that an allegation of undue influence is a serious allegation does not mean that, in an appropriate case, it should not be made”. However “Particulars which are consistent only with the opportunity to influence a will maker are not sufficient” to prove undue influence.

At Everingham Solomons we have the experience and expertise to assist you in all matters concerning your Will or that of a recently deceased family member because Helping You is Our Business.

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