WHAT IS UNDUE INFLUENCE IN PROBATE?

Date: Mar 03, 2013
Document Type: Article

Undue influence in probate is different from the equitable doctrine of undue influence.

Influence used to favour a person by will whatever its degree does not invalidate the will unless it produces a gift or will contrary to the intention of the testator.

In probate what is required to be proved is coercion of the mind so as to produce an act contrary to the intention of the testator.

There is no presumption of influential relationship in probate. Actual and effective coercion must be proved.

Where there is no direct evidence of coercion, but he allegation of coercion is based on surrounding circumstances, the person who asserts undue influence must do more than merely establish the circumstances from which it is sought to have the inference drawn. It is also necessary to establish that as a result of the circumstances the testator’s true intention was overborne and it was by means of the improper exercise of the influence that the will was produced. Some cases have held that a discrete portion of the will affected by undue influence can be severed from the will admitted to probate.

An allegation of undue influence is a serious matter and must be proved on the balance of probabilities.

Undue influence must be pleaded in detail and supported by full particulars. Costs will almost certainly follow the event if an allegation of undue influence is made but does not succeed – this means that a person who unsuccessfully challenges will on the basis of undue influence, will usually have to bear the legal costs of the challenge not only for themselves but for other parties involved in the dispute.

If you are worried that someone is suffering from undue influence in relation to the making of a will, consult a lawyer. You should also keep very detailed records of everything that is taking place so that you can produce evidence in court if necessary.

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