October 20, 2022

When foul play is suspected, can you challenge a Will?

Many clients approach us with concerns that a family member may have been influenced into making a Will in certain terms, often for the benefit of the person alleged to have been influencing the family member. Whilst the suspicion may be reasonable, this does not always mean there will be a viable claim.

There are two main legal avenues we will consider when concerns based on influence are raised:

  1. “Undue influence” – This occurs when a person coerces someone into changing their Will to benefit themselves. Evidence must show more than merely persuasion or encouragement on the part of the alleged influencer.
  2. “Fraudulent calumny” – This occurs when a person makes false representations about the character of another individual, with a view to poisoning the affections of a person making a Will against that individual – primarily with the intention that the representations will impact upon provision made for someone who would otherwise be beneficiary.

Challenges to Wills based on influence and false representations are notoriously difficult to prove, with the acts of influence often taking place behind closed doors. This means there is often little direct evidence to be relied upon.

Notable cases

In Edwards v Edwards [2007] the court heard how the deceased, Mrs Edwards, had been unduly influenced by her son. Mrs Edwards was frail and vulnerable and was frightened of her son who poisoned her mind by making deliberately untruthful accusations against his brother, John, and his wife. Some accusations were that John and his wife had removed money and possessions from Mrs Edwards’ house whilst she had been in hospital.  As a result, Mrs Edwards removed John, from her Will. The allegations of influence were sufficient in this case for the judge to find in favour of John. However, the judge indicated that, in his view, a claimant would need strong evidence to prove that the facts of the case were “inconsistent with any other hypothesis” than undue influence.

Christodoulides v Marcou [2017] saw a dispute between two daughters, Andre and Niki. Their mother made a new will, dated just two days before her death, which left the entire estate to Niki. Notes taken by the Will writer indicated that Andre had been excluded because she had “already helped herself to substantial assets”. In overturning the Will, the court heard that there was no evidence to substantiate such claims and Niki had deliberately and knowingly misled her mother into forming this view.

In Whittle v Whittle [2022] we acted for the successful claimant, David, who was in dispute with his sister, Sonia, concerning the estate of their late father, Gerald. Gerald’s final will left the vast majority of his estate to Sonia. However, the court heard how Sonia had told her father that David was a “psychopath and criminal” and how he had stolen Gerald’s cars and antiques from his house. The judge found that there was no respite for Gerald from Sonia’s falsehoods, noting “she was a constant in his home, in his ears and in his mind” and the content of Gerald’s final will was a reflection of this.

Most recently, in Sharpe v Dyson [2022] the court rejected a challenge to a Will signed by Mr Brian Dale based upon fraudulent calumny. The defendants in the case, Mr Dyson and Mr Ellis, alleged that the beneficiary under Mr Dale’s will, Mrs Sharpe, had poisoned Mr Dale’s mind by casting dishonest aspersions on the character of Mr Dyson and Mr Ellis, for the purpose of persuading Mr Dale to alter his testamentary dispositions. The court found that Mr Dale had acted as a free agent in making his last Will and there was no evidence to suggest that the Will was the product of his affections having been poisoned against Mr Dyson and Mr Ellis, and the Will represented his true wishes.

Despite the difficulties in proving claims of undue influence and fraudulent calumny, if the evidence is available, it is possible to bring a successful case. If you have concerns that a family member was influenced and wish to have advice about your options for contesting a Will, we can investigate your case to see if it is worth taking further.

Contact our Inheritance Disputes team

Disputes around wills and inheritance can be charged with emotion. That is why you need to have a legal team on your side who are emotionally attuned to what you are going through, with a high success rate.

Our Inheritance Disputes team

View more articles from this area:

View more articles related to Wills, Trusts and Estates