Emily Exton and Rebecca Welman write about Undue Influence for the Trusts & Estates Law and Tax Journal.
Head of Dispute Resolution, Emily Exton and Contentious Trusts and Estates associate, Rebecca Welman provide a summary of recent undue influence cases and outline their relevance for practitioners. The article entitled “Undue influence: Reform needed?” is published in the September 2019 edition of the journal.
Emily and Rebecca review over ten cases including Chin (Deceased), Re  EWHC 523 (Ch) and Killick v Pountney  W.T.L.R. 41 ("Killick") to consider the relevant factors for challenging a will on the basis of undue influence.
This article was first published in lawjournals.co.uk and can be accessed here.
English law distinguishes between undue influence in the context of lifetime gifts and undue influence relating to testamentary dispositions, with the former allowing for undue influence to be presumed where there is a relationship of trust and confidence between the donor and donee and the gift is one that "calls for explanation" (Royal Bank of Scotland  UKHL 44) and the latter requiring the person challenging the will on this basis to show "actual" undue influence. It follows that undue influence in a probate context is more difficult to establish; this is reflected in the scarcity of successful claims and has led to calls for reforms to this doctrine to bring it in line with its inter vivos counterpart. Against a backdrop of alleged increases to will challenges in England and Wales (Tristan Clark, "London courts face 'explosion' in cases of children battling over parents' wills", 4 January 2017, Evening Standard), the cases discussed in this article confirm the grounds that need to be satisfied to succeed with a challenge to a will on the basis of undue influence, illustrate the difficulty in doing so and highlight some key factors practitioners should take into account when considering and bringing such claims.
Time to allow for presumption?
The recent case of Chin (Deceased), Re  EWHC 523 (Ch) ("Chin") demonstrates that, despite the real difficulties involved in establishing actual undue influence, when seeking to set aside a will, this possibility should not be automatically discounted by claimants.
Indeed, the case may reflect a softening in approach amongst the judiciary to these notoriously difficult claims. Recent commentary has questioned whether applying the doctrine of undue influence differently to testamentary dispositions is justifiable and whether the distinction means that probate law is out of kilter with developments in equity and in need of reform.
This line of thinking is consistent with the Law Commission's wills consultation paper's proposal that a presumption similar to that applying to lifetime gifts be introduced into the probate context, or that the Court be given a discretionary power to find undue influence on the same basis.
Although there are obviously policy concerns in making such claims easier to succeed with, there is a feeling that the balance may have tipped too far the other way.
Establishing actual undue influence
Drawing on the judgment of Lewison J in Edwards v Edwards  EWCA 1119, the judge in Chin set out the key elements of the law on testamentary undue influence, which can be summarised as follows:
- There can be no presumption of undue influence.
- Whether a will has been procured by undue influence is therefore a question of fact.
- The burden of proving it lies on the person who asserts it.
- Undue influence in this context means influence exercised either by coercion (meaning that the testator's will has been overborne) or by fraud.
- Coercion is "pressure that overpowers the volition without convincing the testator's judgment" and is to be distinguished from mere persuasion.
- The testator's physical/mental strength will assist in determining how much pressure is necessary in order to overbear their will.
The evidential difficulties
It is long established that mere persuasion of the testator which results in a change of mind will not amount to undue influence. Litigants challenging a will on the basis of undue influence need to establish that the pressure exerted was such that the testator was no longer exercising their own free will when executing the document. Such claims are unsurprisingly met with strong resistance. The court therefore needs to see robust evidence of coercion in order to make a finding of undue influence; such evidence is, however, often difficult to obtain given that the person best placed to provide it (i.e. the deceased) is no longer able to do so.
Cowderoy v Cranfield  EWHC 1616 (Ch)
The deceased made a will two years before her death, appointing the defendant as the sole executor and leaving her entire estate to him (he was not a blood relation but had visited and cared for the deceased).
The claimant (who was the deceased's granddaughter) claimed that the deceased lacked testamentary capacity, did not know and approve the contents of her will and that the will had been procured by the undue influence of the defendant. The deceased's son (who was an alcoholic) died three months before she made her will and his entire estate passed on his intestacy to his daughter (the claimant). The evidence suggested that the deceased was unhappy about this.
Morgan J found for the defendant on all of the claims, holding that the will was valid and effective. As there was no evidence of the defendant trying to persuade or influence the deceased, it was held that there was "no arguable case" in this regard; without any such evidence, the judge could not simply draw an inference that the defendant did try to persuade or influence the deceased. The evidence indicated that the deceased did not want to leave anything to the claimant and that, whilst her choice to benefit the defendant was influenced by her own belief/hope that this would make him more inclined to continue to visit and care for her, it was still freely made.
Although the standard of proof is the balance of probabilities, "as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator's will has been over borne by coercion rather than there being some other explanation." (Cowderoy, paragraph 141). Litigants challenging a will on the basis of undue influence are therefore required to prove that "other explanation[s]" can be discounted. Arguably there is almost a presumption against undue influence in a wills context.
Wharton v Bancroft  EWHC 3250 (Ch)
The deceased, who was terminally ill, made a will in contemplation of his intended marriage to his partner of 32 years, the claimant, leaving the entirety of his substantial estate to her. The claimant was not present when the deceased gave the instructions for his will, which was prepared by a solicitor and read back to him. The claimant and the deceased married immediately after the will was made and he died shortly after that. The deceased's children from previous relationships challenged the will, asserting that it was obtained as a result of the claimant's undue influence and that it therefore did not reflect his true wishes. The claimant brought a claim to establish the validity of the will.
The judge held that there was no coercive pressure depriving the deceased of his free choice and found for the claimant. It was relevant that the deceased had understood that giving everything to the claimant meant that no one else would benefit from his estate, demonstrating the overlap with the analysis for will challenges brought on grounds of lack of capacity/want of knowledge and approval. The deceased's children failed to demonstrate actual undue influence (and as the parties asserting it, it was incumbent on them to do so). The Court held that the will contained the last, true wishes of a free and competent testator.
Brennan v Prior  EWHC 2867 (Ch)
Although draft wills had been prepared for the deceased on two occasions previously, the will in question was the first that the deceased had actually executed. It left a pecuniary legacy of £100,000 to the claimant (who was the deceased's illegitimate daughter), with the deceased's siblings inheriting the bulk of his estate. It was the claimant's case that the deceased intended to die intestate so that she would be the sole beneficiary of his estate and she advanced a claim challenging the will's validity on grounds of lack of due execution, lack of capacity, want of knowledge and approval and undue influence. Fundamental to the case for undue influence was that one of the siblings had drafted the will, some were present at the execution and all were named as residuary beneficiaries.
The judge found that whilst the siblings had several opportunities to influence the deceased in the making of his will, undue influence could not be established as there was no evidence of any coercion or pressure that had overpowered the deceased's freedom. This case reaffirms the fundamental principle that, in order to show undue influence in relation to testamentary dispositions, the person claiming it must establish "coercion", which is "pressure that has overpowered the freedom of action of the testator without having convinced his mind" (Wingrove v Wingrove ). The judge found there to have been persuasion but not coercion, once again illustrating the high bar that is to be met by successful litigants.
Brennan also serves as a useful reminder of the costs implications of bringing an unsuccessful undue influence claim. After the judgment was handed down, the defendants sought to recover all their legal costs from the claimant on an indemnity basis and this was ordered by Mr Justice Snowden, despite the fact that these would undoubtedly be difficult for her to meet since they exceeded the amount of her pecuniary legacy.
Although the following cases show litigants successfully challenging wills on the basis of undue influence, they further emphasise the onerous evidential burden, explaining why findings of undue influence in a wills context are so rare.
Killick v Pountney  W.T.L.R. 41 ("Killick")
The claimant asserted undue influence and (unusually) this was the only basis on which the will was being challenged.
The defendant did not appear, nor was he represented and it was argued that adverse inferences could therefore be drawn against him. Whilst the judge did not agree that the defendant's silence and inactivity in the proceedings implied his guilt, it was held that the facts showed that the defendant had coerced the testator and that the will was therefore procured by way of undue influence.
Evidence that helped convince the judge to find for the claimant included:
- The defendant's character and behaviour towards the deceased and his money (he extracted significant loans from the deceased, none of which were ever repaid and, during the last few months of the deceased's life, had taken control of the deceased's possessions and papers).
- The deceased's feelings towards the defendant (he became "increasingly disenchanted and eventually even bitter towards the defendant", page 33 of the judgment).
- The deceased's condition at the time the will was executed (he was in hospital recovering from an operation and was physically and mentally vulnerable, as well as living in an unfamiliar environment that he "hated", page 7 of the judgment.
- The defendant's involvement in the preparation of the will and his exercise of influence.
- The defendant's imposition of a "ban" on the deceased accepting specified visitors (the deceased was told that if he saw them he would not be permitted to return to his lodgings).
The effect that the "ban" had on the deceased (he was "terrified", page 36 of the judgment) together with the deceased's physical and mental vulnerability led the judge to conclude that the influence exerted by the defendant was "undue". It was held that, given the deceased's feelings towards the defendant and the defendant's treatment of the deceased, the provision made for the defendant and his son in the deceased's will was "almost inexplicable" (page 36 of the judgment), supporting the finding that the will was procured by undue influence. This case also usefully highlights that it is not sufficient simply to show undue influence; litigants must establish that this undue influence was exercised in relation to the will in question.
The judge reiterated that there is no presumption of undue influence and that the burden is on the person advancing the claim to show undue influence. Quoting the judgment (page 26) in Boyse v Rossborough (1857) 6 HLC 2, 51, the judge reaffirmed that "it is not sufficient to show that the circumstances attending the will's execution are consistent with the hypothesis of its having been obtained by undue influence; it must be shown that they are inconsistent [with] a contrary hypothesis". This again suggests that almost a reverse presumption applies to undue influence in a probate context.
Gill v Woodall and Others  EWHC B34 (Ch)
The deceased and her husband made mirror wills which provided that on the death of the first spouse, the surviving spouse would inherit their entire estate absolutely, and, on the second death, the surviving spouse's property would be held on trust for an animal charity. The wills included a clause dedicated to explaining why no provision had been made for their daughter, explaining that she had been "well provided for by me over a long period of time".
The claimant daughter advanced a claim that the deceased did not know and approve the contents of her will, and that it was executed as a result of coercion by her husband such that it overcame the deceased's volition. The claimant brought a claim in proprietary estoppel in the alternative.
The judge found for the claimant on the basis of undue influence and the will was set aside. Relevant to the decision was evidence that the deceased wanted her daughter to inherit the farm, but that her husband had exerted pressure on her, so that she made a will that was contrary to her wishes. The deceased's acute anxiety disorder and agoraphobia meant that she was in a fragile state, which, taken together with her husband's dominating and bullying behaviour, indicated her vulnerability to his undue influence. The judgment reiterated the fundamental point that influence which takes the form of advice, suggestion or persuasion does not necessarily equate to undue influence.
Chin (Deceased), Re  EWHC 523 (Ch)
The unusual facts and the particular relevance of cultural norms and family dynamics, together with the claimants' success in establishing actual undue influence means that this case has attracted considerable attention.
Mrs Chin passed away in 2015, leaving a relatively modest estate (most of the family's wealth, the bulk of which comprised a successful takeaway business, was held by her surviving husband). In 2009 Mrs Chin had executed a will in which her share in the family business was split equally between her six children. This was consistent with the attitude expressed in the letter of wishes accompanying the will: “I have always been very fair to all my children as they all came from my womb… I also want to bless my five daughters with my share in the property.”
However, Mrs Chin's 2011 will ("the 2011 Will") left her entire estate to her only son, Winston, and therefore represented on the face of it a dramatic change of heart. Two of Mrs Chin's daughters challenged the 2011 Will's validity on the grounds of undue influence (claiming want of knowledge and approval in the alternative). They asserted that, following a stroke in 2009, Mrs Chin's health was so poor that she became entirely dependent on her husband and son and therefore vulnerable to their undue influence.
At trial it was held that Mrs Chin did not know and approve the contents of the 2011 Will (partly because neither she nor the person purporting to act as her translator spoke very much English), and also that it had been procured by undue influence. As a result, the 2011 Will was found to be invalid.
The undue influence claim succeeded because the claimants managed to show actual proof of coercion. Although Mrs Chin's son was not present when the instructions for the 2011 Will were given, the judge found that Mrs Chin had been subjected to undue influence by both him and her husband over a long period of time.
Much of the evidence centred on traditional Chinese attitudes to inheritance and the tendency for male heirs to inherit their families' wealth to the exclusion of their sisters or other female relatives. Despite the expectation that the family's wealth would pass only to the male heirs, Mrs Chin had previously been resistant to this patriarchal outlook, making it clear that she wished for her daughters also to benefit from her estate. The claimants were able to provide detailed accounts of various instances of pressure, alleging that the deceased's husband was abusive and controlling, and that he had regularly been violent towards his wife and his children. The judge found that Mrs Chin was "worn down" by her husband and son: they exerted undue pressure over her, to which she eventually gave in "for the sake of a quiet life" and which therefore "overbore her wishes".
As suggested above, the claimants' success may reflect an acknowledgment amongst the judiciary that undue influence in a probate context should be found more readily and the case may open the gateway to a greater number of successful claims. On the other hand, the specific and unusual facts of Chin, and the strength of the evidence upon which the claimants were able to draw, means that the case arguably does no more than exemplify the high bar that litigants must reach in order to establish actual undue influence.
Some key takeaways for practitioners
The above High Court decisions provide practitioners with a useful indication of how judges are likely to approach testamentary undue influence claims.
The burden on the person claiming undue influence is difficult to discharge and cases will turn on the strength of the evidence put before the Court. In Chin, a key factor in the downfall of the defendants' case was the performance of their witnesses during cross-examination. It is therefore even more important than usual for practitioners to think carefully about which witnesses to call, taking into account how they are likely to deal with the pressure of cross-examination.
Further, it is clear from the successful cases that the vulnerability and susceptibility of the deceased to coercion can be an important factor in establishing undue influence. The health of the deceased in Chin had deteriorated following a stroke and she spoke very little English; the deceased in Gill suffered from an anxiety disorder and agoraphobia; and in Killick, the deceased was in a vulnerable condition in hospital when he was unduly influenced by the defendant. This highlights the need for non-contentious practitioners to be aware of circumstances where testator clients are at risk of being unduly influenced, since it will clearly be easier to protect their interests at the time that the will is being drafted.
Save for Killick, the above cases demonstrate the tendency of litigants to bring challenges to wills from multiple fronts, with undue influence often constituting just one of several lines of attack alongside lack of testamentary capacity, want of knowledge and approval, proprietary estoppel and claims under the Inheritance (Provision for Family and Dependants) Act 1975. These different grounds of challenge are sometimes mutually exclusive (in which case they should be pleaded in the alternative). For example, to be unduly influenced, the testator must have testamentary capacity and knowledge and approval of the will as to be influenced requires a level of understanding and awareness. In his judgment on the appeal of Gill, on having decided that the will should be set aside on the basis of want of knowledge and approval, Lord Neuberger declined to make a finding in relation to the undue influence claim on the basis that it is "rather unreal to consider arguments as to the nature and extent of the influence [the testatrix's husband] exerted on his wife to persuade her to leave the farm to the RSPCA, when I had just concluded that she did not know that she was doing that very thing." (Although, note that this is inconsistent with the judgment in Chin).
It is worth noting that litigants who successfully challenge a will on one of the grounds advanced may not be able to recover the costs for the failed aspects of their claim. Therefore, practitioners should bear in mind that a scatter-gun approach to challenging a will (although tempting in light of the difficulty involved in establishing undue influence) may end up costing the client significant sums in legal fees that cannot be recovered.
Perhaps one of the reasons why English law has thus far resisted introducing a presumption in a wills context is the difficulty in envisaging what form such a presumption would take. As the testator-beneficiary relationship is commonly one of trust and confidence, introducing the same presumption that applies to lifetime gifts to a probate context could well open the floodgates. It could also be argued that since the principle principal witness (i.e. the testator) is unable to give evidence, the burden on the person propounding the will is unreasonably difficult. Narrowing the scope of the presumption so that, for example, it only applies where the beneficiary has been "instrumental" in the preparation of will (as proposed by R. Kerridge, "Wills made in suspicious circumstances: the problem of the vulnerable testator" (2000)), also carries with it various problems. It is not difficult to imagine instances of testamentary undue influence where a beneficiary has not been "instrumental" in the preparation of the will. The subjective nature of deciding when involvement becomes "instrumental" also means that such decisions would be vulnerable to inconsistency.
In a jurisdiction where judges and legislators alike are fiercely committed to guarding testamentary freedom, this discussion is by no means closed. Although the law remains unchanged for now, the question of whether there is any need for reform (and therefore the future of this doctrine) remains live.