What Does Undue Influence Mean in Will Writing?
21 August 2019
Undue influence refers to an individual being influenced by another person to make a Will or amend their existing Will in a way that does not reflect their true wishes, usually for that person's benefit.
Typical examples of undue influence would be if you were to make a Will, or amend your existing Will:
- under force from another person
- under threat or fear from another person
- or if another person had lied or been deceitful to influence your choices on the terms of your new Will
If your Will contains an unexpected gift or contradicts your previously expressed wishes, then usually it's a good idea to take measures to reduce the risk of it being challenged on the grounds of undue influence after you die.
Could Your Will Be Challenged on the Grounds of Undue Influence?
If your loved ones have reason to believe that you were acting under undue influence at the time of making your Will, then certain individuals could have grounds to challenge your Will on this basis. The ability to challenge exists under the Inheritance (Provision for Family and Dependents Act) 1975. This law balances out the right that people have in England and Wales to leave their Estate to whoever they choose, against the expectation of inheritance certain individuals may have from your Estate.
The categories of individuals able to challenge your Will after you die are limited by law to the following:
- Your spouse or civil partner (or ex-spouse or civil partner, providing they've not entered a new marriage or civil partnership)
- Your child or someone you treated as your child (including a stepchild, adopted child or foster child)
- Someone who was living with you for the 2 years leading up to your death in a spouse or civil partner type relationship
- Someone who was financially dependent on you immediately before your death
If your Will is challenged after your death due to suspected undue influence, any decisions on the outcome of the challenge will be based on the individual circumstances of the case. Any available information that evidences your thoughts and reasons for the terms of your Will would be considered. To reduce the risk of your Will being successfully challenged on these grounds, it's important to demonstrate that you were not acting under the influence of anybody else when you made your Will.
Proving You Are Not Acting under Undue Influence
If you are including gifts in your Will, or distributing your Estate in a way that could take your loved ones by surprise, there are steps you can take to reduce the risk of a successful undue influence challenge after you die.
Firstly, it's important to remember that Will is a legal document which needs to be drafted in the correct way, using the correct legal terminology. A poorly drafted Will, or a DIY Will, is far less likely to hold up if it is challenged after you die than one that has been drafted by a professional.
So, one of the most effective ways to reduce the risk of your Will being successfully challenged is to have it professionally drafted by a specialist Will Writing provider, such as Co-op Legal Services. Will Writing is currently an unregulated industry, but Co-op Legal Services is authorised and regulated by the Solicitors Regulation Authority (SRA), meaning that we must adhere to their codes of practice.
At Co-op Legal Services, our Will Writers will carry out checks during your Will Writing appointment to establish whether you could be acting under the undue influence of someone else. These checks will be recorded and can be called upon if your Will is ever challenged in the future.
Another effective way to reduce a challenge to your Will after you die is to explain your wishes to your loved ones now, to help them understand your reasons and know what to expect when the time comes.
Alternatively, if you do not wish to discuss this with your loved ones now, you could include a Letter of Wishes alongside your Will in which you can explain why you've chosen to distribute your Estate in the way you have. A Letter of Wishes would be taken into consideration if your Will was challenged after your death.