Undue Influence

Question 1

What does undue influence mean?

Answer 1

Coercion and duress

Testator’s free will has been overpowered

Merely persuading someone to make a will is acceptable. Led but not driven

Question 2

What was decided in the case of Hall v Hall 1868

Answer 2

A testator may be led but not driven

His will must be the offspring of his own volition and not the record of someone else’s.

Question 3

Who has the burden of proof

Answer 3

The person making the allegation of undue influence

Question of fact determined by evidence of circumstances

Question 4

Types of pressure

Answer 4

Violence

Confinement

Subtle domination of the mind of the testator depending on their physical and mental health

Question 5

Name two cases of undue influence

Answer 5

Wingrove v Wingrove 1886

Killick v Pountney 1999 - court stressed importance of solicitor taking instructions without presence of potential beneficiaries.

Question 6

Facts of case of Schrader v Schrader 2013

Answer 6

Testatrix’s son exerted pressure on her to make another will which excluded other son

She depended on him and was vulnerable

Use of will writer and no solicitor

Son’s forceful personality

Question 7

What happens if undue influence of gift proven

Answer 7

Gift or whole will can be inadmissable

Question 8

Cases where undue influence hard to prove

Answer 8

Gill v Woodall 2010 - extremely difficult to prove and requires cogent evidence

Carpeto v Good 2002 - if insufficient evidence in brought the party may be penalised with costs

Question 9

Leading case of undue influence

Answer 9

Parfitt v Lawless 1872

Must be actual evidence