Introduction

When creating a will, distinguishing between legitimate persuasion and undue influence is a critical, yet often complex, matter. While actions like providing advice or making appeals to affection are permissible, undue influence involves coercion that overpowers a will-maker’s true intentions and can be grounds to invalidate their will.

For beneficiaries and family members, understanding this distinction is essential when considering whether to contest a will. This guide provides practical information on the key factors that separate acceptable persuasion from unlawful coercion, outlining what is required to challenge a will based on undue influence and the significant difficulties involved in proving such a claim.

Understanding Undue Influence & Legitimate Persuasion

The Definition of Undue Influence in a Will Challenge

Undue influence occurs when a will-maker is subjected to such a degree of pressure that they can no longer exercise their free will. At its core, this concept involves coercion that forces the will-maker to create a document reflecting the influencer’s wishes rather than their own true intentions.

To successfully challenge a will on these grounds, it must be proven that the will-maker was coerced into making a disposition they did not genuinely desire. This coercion can manifest in various ways, including:

•   Blackmail or lies
•   Constant pressure applied to a person who is physically frail or mentally weak
•   Exploiting a position of trust or dependency to overwhelm the will-maker’s judgment

Ultimately, the court will invalidate a will if it determines the will-maker’s mind was overborne, which is a key legal ground for challenging the validity of a will in NSW. The focus remains on whether the will was the product of coercion, not merely an opportunity to influence.

What Constitutes Legitimate Persuasion

Not all influence exerted on a will-maker is considered unlawful. The courts draw a clear distinction between illegitimate coercion and legitimate persuasion, with the latter being entirely permissible.

Actions that fall within the bounds of legitimate persuasion include:

•   Offering advice
•   Using flattery
•   Making appeals to family bonds and affection

As established in the case of Hall v Hall (1868), certain forms of influence are considered acceptable, such as:

•   Appeals to affection or family ties
•   Expressions of gratitude for past services
•   Arguments based on pity for future hardship

The critical difference lies in whether the will-maker remains free to accept or reject the suggestions. As long as their free will is not compromised and the final will reflects their own considered decision—even if prompted by another’s persuasion—it will not be overturned on the grounds of undue influence.

Key Factors in Proving Undue Influence in NSW

The Onus & Standard of Proof

When a will is challenged on the grounds of undue influence, the responsibility for proving the allegation rests entirely with the person making the claim. This is known as the onus of proof, and it is a significant hurdle in any will contest, as there is no presumption of undue influence in these matters.

The claim must be proven on the balance of probabilities, which is the standard of proof required by the court. This means the evidence, when evaluated as a whole, must show that it is more likely than not that the will-maker was coerced.

It is not enough to simply establish that a person had the power or opportunity to unduly influence the will-maker; it must be demonstrated that this power was actually used and that the will was a direct result of that coercion.

An allegation of undue influence is a serious matter, and pursuing a claim without sufficient evidence carries considerable risk. If a challenge based on undue influence is unsuccessful, the court may order the person who brought the claim to pay the legal costs of the other parties involved in defending the will.

Evidence Required to Support a Claim

Proving undue influence is notoriously difficult because the coercive behaviour often happens privately, away from independent witnesses. A person making such a claim must support it with detailed evidence, as proving undue influence requires a comprehensive legal strategy.

Direct evidence of coercion is not common, as these actions are rarely performed openly. However, when available, it provides strong support for a claim. More frequently, a case will rely on a combination of different types of evidence, including:

Type of Evidence	Description & Examples
Witness Testimonies	Statements from family members, health professionals, caregivers, or lawyers who observed the will-maker’s state of mind or the influencer’s behaviour. Witnesses may need to provide evidence in court and undergo cross-examination.
Medical Records	Documents detailing the will-maker’s physical and mental health can establish vulnerability. Records showing cognitive decline, dementia, or physical frailty may indicate a heightened susceptibility to pressure.
Financial Documents	Irregular or unusual financial transactions leading up to the will change can suggest that another person was controlling the will-maker’s finances for their own benefit.
Legal and Personal Documents	A solicitor’s file notes from when the will was prepared can offer valuable insight. Previous wills, personal letters, emails, and text messages may also reveal prior intentions or show a pattern of pressure.

Common Warning Signs & Risk Factors for Undue Influence

Vulnerability of the Will-Maker

A will-maker’s vulnerability can significantly increase the risk of undue influence, particularly when they are dependent on others for their care and well-being. This susceptibility often arises when a person is elderly or suffering from a serious illness, making them more susceptible to coercion.

Vulnerability Factor	Description
Physical Frailty	A person who is physically weak or enfeebled may find it difficult to resist persistent pressure from a caregiver or family member.
Cognitive Decline	Conditions such as dementia can impair a will-maker’s judgment and make them more easily manipulated.
Dependency	When a will-maker relies on another person for daily needs, that person is in a powerful position to exert influence over their decisions.

Courts recognise that a weak or ill testator may succumb to pressure simply for the sake of peace. In such cases, what might be considered mere persuasion with a healthy individual can amount to coercion that overpowers the will-maker’s true desires.

Suspicious Circumstances & Will Changes

Certain red flags surrounding the will-making process can suggest that undue influence may have occurred. These circumstances often involve sudden or unexplained deviations from a will-maker’s previously expressed intentions. While not definitive proof, they can be critical warning signs of potential manipulation.

Suspicious Circumstance	Description
Unexpected Will Alterations	A will that is changed unexpectedly, especially when the will-maker is near death or in poor health, can be a significant indicator of manipulation.
Exclusion of Key Beneficiaries	The removal of long-standing beneficiaries, such as close family members, in favour of a new acquaintance, caregiver, or a single child can be highly suspicious.
Beneficiary’s Involvement in Will Preparation	A beneficiary preparing the will, giving instructions to the lawyer, or taking the will-maker to sign the document is a major red flag.
Isolation of the Will-Maker	Actions to limit the will-maker’s contact with others, such as screening phone calls or preventing visits, can be a tactic to exert control and manipulate the situation.

Undue Influence Claims in Practice: Contrasting Case Studies

A Successful Claim: Nicholson v Knaggs

The Victorian case of Nicholson v Knaggs (2009) provides a clear example of a successful will challenge based on undue influence. The case involved the estate of Betty Dyke, an 84-year-old woman with dementia who passed away with assets valued at nearly $16 million.

Her original will from 1985 left the majority of her estate to various charities. However, she later created two new wills in 1999 and 2001 which significantly altered these arrangements. These later wills redirected the bulk of her estate to three groups of neighbours, drastically reducing the donations to her previously chosen charities.

The court’s investigation revealed that two of Mrs. Dyke’s neighbours had exerted undue influence over her when she made these later wills. As a result, the court took decisive action by:

• Severing the specific clause in the most recent will that was subject to coercion
• Upholding the remainder of the will as valid

This case demonstrates how courts can identify and remedy instances of undue influence while preserving valid portions of a will.

An Unsuccessful Claim: Birt v The Public Trustee of Queensland

In contrast, the case of Birt v The Public Trustee of Queensland (2013) illustrates the high standard of proof required to establish undue influence. The will-maker, 86-year-old Patricia Brooks, was also suffering from dementia when she died. A will made in 2004 left her entire estate to her son, which was a significant departure from a 1990 will that had divided her estate equally among her two daughters and son.

The daughters challenged the will on grounds of undue influence, presenting evidence that their brother:

• Lived with their mother
• Engaged in bullying and verbally abusive behaviour
• Allowed his friends to steal from her
• Convinced her that one of the sisters intended to take over the house

Despite this concerning behaviour, the court ruled there was no evidence that the son had actually coerced his mother to change her will. The judge specifically noted that there was no proof the son:

• Was the stimulus for the change in the will
• Desired that specific outcome

This case highlights an important legal principle: demonstrating an opportunity for influence or even poor behaviour is not sufficient to invalidate a will. Actual coercion must be proven to establish undue influence.

How to Prevent or Minimise the Risk of Undue Influence

The Importance of Independent Legal Advice

Engaging an experienced wills and estate lawyer is one of the most effective measures a will-maker can take to minimise the risk of undue influence and avoid the common mistakes you’ll make when drafting your own will. A qualified legal professional can ensure that the will accurately reflects the testator’s genuine wishes and is not the product of coercion.

An experienced estate lawyer will typically:

•   Insist on taking instructions from the will-maker alone, away from any beneficiaries or other interested parties
•   Keep detailed file notes documenting their discussions and the rationale behind the will’s provisions

This approach helps to ensure that the will-maker is expressing their own intentions freely. Furthermore, these detailed records create crucial documentation that can be used to defend the will if a challenge based on undue influence is ever made.

Practical Safeguards for the Will-Maker

In addition to seeking independent legal advice, will-makers can implement several practical safeguards to protect their will from future challenges. These proactive steps can help create a clear record of their intentions and capacity.

Preventative Measure	Description & Rationale
Obtaining a Medical Assessment	A medical assessment of the will-maker’s mental capacity at the time the will is created can provide strong evidence to counter future claims of vulnerability due to cognitive decline.
Documenting Reasons for Provisions	If a will contains unusual provisions, such as excluding a close family member, documenting the reasons can help clarify the will-maker’s intentions and rebut allegations of manipulation.
Choosing Impartial Witnesses	Having the will witnessed by individuals who are not beneficiaries helps to avoid any suggestion of impropriety or suspicion that a beneficiary was involved in the will-making process.
Encouraging Open Communication	Discussing estate plans openly with family can help manage expectations and reduce the likelihood of disputes arising after the will-maker’s death.

Conclusion

Understanding the difference between legitimate persuasion and undue influence is critical, as a will can only be invalidated by proving coercion that overpowered the will-maker’s true intentions. Successfully challenging a will on these grounds is a difficult legal process, as the onus of proof rests entirely on the person making the claim to show the will was not a product of free will.

If you are facing a dispute involving a will or have concerns about undue influence, seeking professional guidance is essential. Contact the specialised wills and estates lawyers at PBL Law Group today for trusted legal advice to navigate this complex area of law and protect your interests.

Frequently Asked Questions