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          Is it still so difficult to prove undue influence when challenging a will?

          Date: 09/04/2013

          Disappointed beneficiaries of Wills often have a strong suspicion that someone has improperly persuaded a person to change their Will.  Such circumstances can lead to the most contentious and emotionally charged disputes, particularly if a disappointed beneficiary believes he or she has been prevented from receiving what they perceive to be as their rightful inheritance.

          However, for contentious probate lawyers, proving undue influence when challenging a will involved clearing such a high hurdle (of the evidential kind) that successful cases were few and far between. 

          The obvious problem is that the key witness is dead and a strong suspicion by a disappointed beneficiary is not enough.  The elements of what constitutes undue influence have been set out by the Courts numerous times.  In particular, there is a requirement to show that there was coercion, in the sense that the testator’s will must have been overborne.  Further, coercion is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. 

          Historically, circumstances which would start alarm bells ringing even for the most trusting of people, have not amounted to undue influence when properly examined by the Courts. However, the recent case of Schrader v Schrader [2013] EWHC 466 appears to buck the trend and offer hope to disappointed beneficiaries. 

          The claimant and defendant were brothers (Nick and Bill respectively), and the dispute related to their mother’s Will and her decision to leave her farmhouse to Nick entirely rather than divide it equally between her sons.  

          Nick had moved into the farm house to look after his mother some 12 months before the final Will was prepared. There had been a history of Nick believing that Bill had been treated more favorably by his parents than him. 

          Evidence was accepted that Nick was a violent man although there was no evidence to suggest he was violent towards his mother.  The family had had a number of dealings with a firm of solicitors and indeed the first Will was prepared by them.  The second Will was prepared by a Will writer found by Nick in the yellow pages as he alleged that the family solicitor did not do home visits. 

          The Will writer recorded no concerns about undue influence and was satisfied that none existed.  Up to trial, there appears to have been no evidence to suggest Nick had persuaded his mother to change her Will in his favour. 

          At trial, Nick maintained that he was not aware of the content of the second Will until after his mother’s death.  However, at trial, the Will writer attended and provided a previously unseen document – a draft of the second Will with Nick’s handwriting on it.  The fact that Nick had lied about his knowledge of the contents of the Will together with his unsupported explanation as to why his mother changed her Will, convinced the Court that there must have been undue influence. 

          This case on the face of it appears to overlook the previous requirement of coercion to prove undue influence.  However, the undoing of the claimant was his lack of credibility at the trial.  It highlights the obvious point that credibility is a vital requirement for all those that give evidence.  However, what is not quite so obvious is whether findings of undue influence will continue to be so rare.     

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