Quite a common enquiry we get is that a Deceased relative made a Will leaving their property to someone unexpected, and that the enquirer believes they were unduly influenced by the beneficiary.
This could be a caregiver or a later-life “friend” (sometimes of a romantic nature). Another common scenario is a testator who leaves a much greater share – or even all – of their assets to one adult child. Often the testator is vulnerable or fearful of that child, who then makes untrue accusations about other family members. In such cases, the testator’s discretion and judgment may become overborne, leading them to make a will effectively under another’s undue influence
Re Edwards (deceased) – a clear example
In Re Edwards (deceased) (High Court, 2007), Mrs. Edwards initially left her residuary estate equally to her three sons, Ronald, John, and Terry. During her later years, she had a close relationship with Ronald and with John and his wife, Carol. John and Carol visited often, and Carol helped with chores like washing and cooking. Mrs. Edwards clearly trusted Carol – she even made Carol a signatory on her bank account.
By contrast, Mrs. Edwards had a poor relationship with her third son, Terry, who was an abusive alcoholic; she was afraid of him. Shortly before her death, Terry removed Mrs. Edwards from a nursing home against medical advice. Mrs. Edwards then made a new will leaving her entire estate to Terry. Given these facts, something was clearly amiss. Terry effectively stopped Mrs. Edwards from seeing John and Carol for a time, and during that period Mrs. Edwards began making false allegations that John and Carol had stolen items from her. She refused to see Carol (and therefore John) at all.
Unsurprisingly, the judge found that Mrs. Edwards’s final will had been procured by Terry’s undue influence, and her previous will was reinstated. There was no other reasonable explanation for Mrs. Edwards suddenly turning against John and Carol – with whom she had previously enjoyed a positive relationship – other than Terry poisoning her mind.
The judge found that the effect of the false allegations Terry fed her was “to cause her own discretion and judgment to be overborne.” In other words, Mrs. Edwards’s free will was crushed by coercion. This case provides a clear example of undue influence and illustrates the kind of circumstances in which such a claim might arise.
Key legal principles from Edwards and beyond
The Edwards case remains a leading authority on undue influence in wills, and it laid out several important principles. Notably, unlike in certain lifetime transactions, in will cases there is no presumption of undue influence – the burden lies on the person challenging the will to prove it.
The court looks for coercion or pressure that overbears the testator’s free volition, not mere persuasion or appeals to sentiment. As Lewison J. explained in Edwards, “it is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis”. In practical terms, this means the evidence must point to undue influence as the only plausible explanation for the testator’s actions.
Recent clarification – Rea v Rea (2024):
The Court of Appeal has recently affirmed and refined the above principle. In Rea v Rea [2024] EWCA Civ 169, Newey LJ emphasised that to succeed in a probate undue influence claim, “the circumstances must be such that undue influence is more probable than any other hypothesis”. In other words, if an innocent explanation for the will (for example, genuine gratitude to the beneficiary or a rational decision by the testator) is equally as likely as the alleged undue influence, then the claim will fail.
This “more probable than any other” formulation doesn’t change the normal civil standard of proof (balance of probabilities), but it underscores how high the bar is for proving undue influence in wills. The facts must make coercion the most likely explanation, not just one of several plausible possibilities.
A note on fraudulent calumny
It’s worth noting the related concept of fraudulent calumny, which Edwards also discussed (though it was not the basis of the decision in that case). Fraudulent calumny is a distinct probate claim where a person deliberately poisons the testator’s mind against another potential beneficiary by telling lies about them, knowing those statements are false or not caring whether they are true. If those dishonest aspersions cause the testator to change their will – for example, to cut out the target of the slander – the will can be set aside for fraud.
In Edwards, the facts might well have fit this definition (Terry’s false allegations deliberately turned his mother against John and Carol), though the judge ultimately set the will aside on undue influence grounds.
Recent cases show that fraudulent calumny claims can succeed given strong evidence. For instance, in Whittle v Whittle [2022] EWHC 925 (Ch), the High Court invalidated a will after finding that one sibling had manipulated the testator with false stories about another sibling – amounting to a “deliberate poisoning of the testator’s mind”. This resulted in the will being overturned for fraudulent calumny.
Key takeaways:
Challenging a will for undue influence or fraudulent calumny is inherently difficult. The court will require cogent evidence that the testator’s true intentions were overborne by coercion or deceit. As reaffirmed by Rea v Rea, an undue influence claim will only succeed if undue influence is more likely than any other explanation for the will. Nonetheless, as Re Edwards illustrates, when there is no other reasonable explanation for a sudden and drastic change in a testamentary disposition apart from one person’s malign influence, the courts are prepared to step in and void the will.
Case ref: Edwards v Edwards and another, [2007] All ER (D) 46 (May)
Jennifer Wiss-Carline is a practising Solicitor regulated by the SRA and a Chartered Legal Executive (FCILEx), bringing over two decades of experience to her practice. Specialising primarily in Private Client law, Jennifer expertly handles matters including Wills, Inheritance Tax and Estate planning, Lasting Powers of Attorney for individuals and businesses, Deputyship Orders and more.
