Unravelling undue influence and duress when making a Will

Unravelling undue influence and duress when making a Will

Sometimes the weaker person in a family relationship can be pressured by a dominant family member, or even a trusted friend, into making a Will which leaves a substantial gift to that dominant person.  Frail and elderly people can especially fall target to this situation.

The weaker person may also have lacked the capacity to make their last Will, which means they didn’t fully understand the effect of what they were signing.

In both these instances the Will can be challenged by making an application to the court.

What is meant by lacking the capacity?

Possessing the capacity means the person making the Will (testator), has sound mind, memory and understanding, clear of dementia or any other illness which may affect that capacity.  In other words, having the capacity to:

  • understand the nature of making a Will
  • understand what property and personal effects are being left to the beneficiaries
  • have memory to recall who the property and personal effects are being left to, and to understand their relationship with those people

If the testator didn’t have the capacity at the time of making their Will, then it can be challenged.

What is meant by pressure (undue influence) and duress?

A dominant party may pressure the testator to include them in the Will simply by their conduct.

Duress is usually accompanied by threats to damage the testator’s property, or threats of a physical nature. Ceasing to assist the testator with certain tasks, and generally making life difficult for the testator can cause duress.

If the testator was put under pressure or duress by someone manipulating the testator to leave them an inheritance, then the Will can be challenged.

What if the estate’s executor is not acting in the best interests of the estate?

An executor must administer the estate in a timely manner, and in accordance with the testator’s wishes in the Will. We have seen cases where this hasn’t occurred. In one matter the executor had simply “sat on” the assets of the estate for 5 years, to utilise those assets for their own benefit.  This resulted in a clear disadvantage to the beneficiaries, as their inheritances dwindled during those 5 years.

In this situation an application can be made to the court for the executor to be removed for their inappropriate behaviour.

If you have any concerns regarding these issues, call us to discuss the possibility of making a claim.


Back to Articles