Undue influence Definition

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GLOSSARY

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What does Undue influence mean?

The equitable doctrine by which a will will be set aside if procured by undue influence.

In probate, undue influence must be positively proved. There is no doctrine of presumed undue influence in relation to wills. Undue influence is coercion; pressure so as to overpower the volition without convincing the judgment; see Hall v Hall (1868) LR 1 P & D 481.

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Validity of Wills—presumptions

If a Will is rational, in regular form and appears to be duly executed, the following presumptions apply:•due execution•capacity•knowledge and approvalPresumption as to due executionThe court will presume due execution if presented with a Will that, on the face of it, appears to be duly executed by applying the principle omnia praesumuntur rite esse acta (all things are presumed to be done in due form). This may be rebutted but strong evidence is required:'The strongest evidence would be required to show that a will had not been executed in accordance with the Act when it appeared from its face to have been properly executed, and there was no question but that the will represented the testator's intention. The court should be slow on the basis of extraneous evidence to hold that such a will had not been properly executed, since evidence of events that had happened years previously was likely to be unreliable. To do so would be to deprive the testator of giving effect to his wishes, which he...

Probate actions—lack of testamentary capacity

Probate actions—lack of testamentary capacity With increased life expectancy comes increased mental illness as people’s bodies outlive their minds. Dementia and other mental illnesses including depression, anxiety, psychosis, confusion and personality disorders may all impact a testator’s ability to make a Will. In addition, drug use, alcoholism and recent bereavement can have a significant impact on capacity. Analysis of the test for testamentary capacity For the purpose of assessing a deceased individual's testamentary capacity, recent case law maintains that the test under Banks v Goodfellow is still the appropriate test. That test provides that the testator must: • understand the nature of the act of making a Will and its effects • understand the extent of their estate of which they are disposing by Will • understand and appreciate any claims against their estate, and • not suffer from any ‘disorder of the mind’ such as to impair or influence the above factors In Leonard v Leonard the High Court set out an authoritative and...

Discover our 15 Practice Notes on Undue influence

Contentious probate—client guide

Contentious probate—client guide This document provides general guidance regarding some of the key issues in bringing a contentious probate claim. Your specialist Private Client practitioner will be able to provide tailored advice based on your personal circumstances. What is contentious probate? Losing someone you love is one of the most difficult experiences in life. It can be made even harder if you think there is a problem with their Will or the disposition of their estate, or if a family member challenges a Will that you are sure is valid. Contentious probate is a dispute over a person’s estate following their death. It is often between family members and/or close friends of the deceased These disputes are often divisive and emotional as they concern family members. They are also increasingly common as people are more aware of their legal rights and more willing to litigate over them. The value of estates has also increased as property prices have risen and family structures are often more complicated than...

Continuing and welfare power of attorney

Continuing and welfare power of attorney By [name of granter] In favour of [names(s) of Attorney(s)] (Continuing and Welfare Attorney(s)) [year] [Agent details] Ref: [...] I, [name of granter], residing at [granter’s address], hereby appoint: 1 [name and address of first continuing Attorney] [and/whom failing name and address of second/substitute continuing Attorney] [and so on] to act as my Continuing Attorney(s) (my Continuing Attorney(s)) in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000 (which Act and subsequent amendments of it are referred to in this Power of Attorney(s) as the Act) from the date of this Power of Attorney(s) with the General Powers defined hereafter and particular powers specified in clauses 1 to 13 inclusive (Continuing (Financial) Powers) and clause 15 of this Power of Attorney(s); and 2 [name and address of first welfare Attorney] [and/whom failing name and address of second/substitute welfare Attorney] [and so on] to act as my Welfare Attorney(s) (my Welfare Attorney(s)) in terms of...

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