For a Will to be invalid as a result of undue influence there must be more than an opportunity to exert, or a suspicion of, undue influence. There must be a coercion that results in the Will failing to reflect the Will maker’s true wishes. A person who makes a Will is called a ‘Testator’.

Coercion does not need to involve actual violence, force or threats. For example, in a 2009 case of Nicholson v Knaggs decided by the Supreme Court of Victoria, the Court held that it is the effect of the influence and not the intention of the influence that is the significant factor. The judge hearing the case said –

“The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event… Further, the influence need not be intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the Testator”.

The point where influence becomes ‘undue’ will depend on the circumstances of the case and the vulnerability of the Testator. It is important to remember that the burden of proving undue influence remains at all times on the person making the allegation.

Traditionally, undue influence has been notoriously difficult to prove and so it has not been particularly effective in safeguarding vulnerable Testators. However, in the Nicholson case mentioned above, the Judge hearing the case stated a possible new test for undue influence, saying that –

“In cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged… the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole“.

This test has so far been adopted in Victoria, Queensland and Western Australia but not yet in New South Wales.

A person applying for a Grant of Probate of a Will must satisfy the Court that the Will was the last Will of a free and capable Testator. Generally speaking, the proper execution of a Will is prima facie evidence that the Testator knew and approved of its contents.

This concept was challenged in a 2011 case of Tobin v Ezekiel where the Supreme Court of New South Wales considered the meaning of ‘suspicious circumstances’ in the execution of a Will.

The most classic example of suspicious circumstances in the making of a Will where undue influence is suspected is where a beneficiary is involved in the Will making process.

Unfortunately however, in Tobin’s case, the NSW Supreme Court found that knowing and approving of the contents of a Will is concerned with whether the contents reflects the Testator’s intentions and “not with the process by which the testamentary intention was formed”.

It therefore remains to be seen whether the NSW Supreme Court will adopt a new test on undue influence in light of the decision in the Victorian case of Nicholson v Knaggs.

For more information regarding Challenging Wills and Family Provision Claims, contact Brazel Moore Lawyers on (02) 4324 7699 to speak to an experienced Solicitor today.