Families often feel blindsided when a loved one’s Will changes unexpectedly. Maybe a long-standing beneficiary is cut out. Or perhaps someone who’s new to the picture suddenly inherits the lion’s share. Sometimes the Will just doesn’t match what the person had always said they wanted.
It’s in these moments that questions start to surface. Was this what they really wanted? Or did someone else get in their ear?
Contesting a Will is never easy, and proving that something improper happened is even harder. But if you suspect a Will was changed under pressure or against someone’s true wishes, it’s important to understand what can be done.
What is Undue Influence in a Will?
Undue influence arises when someone exerts pressure over the person making the will so that the testator’s own free will is overcome. It goes beyond normal persuasion or advice and becomes coercion that causes the testator to act against their own true desires.
Why persuasion isn’t enough
Influence, advice and suggestion are lawful. The turning point is when pressure becomes so strong that the testator does not act of their own volition. The classic case Wingrove v Wingrove (1885) LR 11 PD 81 established the principle that “in a word – coercion” is required for undue influence to invalidate a Will. The judge explained that even grossly immoral exertion of influence is not enough unless it overbears a testator’s free will.
The WA context
In Western Australia, people have the right to decide how they leave their estate. But that freedom isn’t absolute. If evidence shows a Will‑maker was coerced or manipulated in ways that spoil their true wishes, the law allows challenge.
Difference between undue influence and lack of capacity
While both undue influence and lack of capacity can make a Will invalid, they are not the same.
Undue influence is about external pressure, in which someone is overpowering the Will-maker’s freedom of choice. Lack of capacity, on the other hand, is about internal ability, such as the Will-maker not understanding what they’re doing due to illness, dementia or cognitive decline.
In some cases, both may be present, but they are assessed differently by the court. Lack of capacity focuses on the testator’s mental state at the time of signing the Will, while undue influence focuses on the actions of others and how it affected the testator’s freedom of choice.
Signs That a Will May Have Been Made Under Undue Influence
If you’re concerned about how a Will came to be, look for these red flags:
- The Will was changed suddenly or dramatically, especially late in life
- The Will-maker was vulnerable due to illness, cognitive decline, or frailty
- The Will-maker was isolated from family or friends around the time the Will was made
- The person who benefited most was also providing care, controlling access, or managing finances
- A beneficiary was involved in preparing or witnessing the Will
- Longstanding beneficiaries were excluded without any clear reason
One or two of these signs alone may not prove undue influence. But together, they can raise serious questions worth investigating.
If something doesn’t feel right, seek legal advice early. The sooner these issues are explored, the easier it is to gather and preserve evidence, and understand how to proceed.
How to prove undue influence in WA
Proving undue influence isn’t straightforward. The testator is no longer with us, and suspicion alone isn’t enough. You’ll need clear, credible proof that someone else’s wishes replaced the testator’s wishes.
Who has to prove it?
The burden of proof lies with the person or party alleging undue influence. If you believe someone was unduly influenced, you must bring the evidence to court (not the other way around). It’s a high bar.
The three-part legal test
To succeed, courts will usually look at three key elements.
1. Opportunity and power to influence
Was the alleged influencer in a position of trust, authority, or dependence? For example, a carer, adult child, or close relative.
2. Actual exercise of influence
Did they use that position to pressure the testator, either through isolation, control, manipulation, or repeated persuasion?
3. The outcome reflects the influencer’s wishes, not the testator’s
Would the Will have looked different if that pressure hadn’t existed? This might be supported by prior Wills, notes, or statements showing different intentions.
In some cases, particularly where there’s a clear power imbalance, courts may also examine whether a presumption of undue influence should apply. This arises when the circumstances suggest the influencer had significant control over the Will-maker, triggering closer scrutiny of the relationship and how the Will was prepared.
What counts as coercion?
It doesn’t have to be shouting or threats. Coercion can be subtle, especially where the testator has been unduly influenced by someone they depend on for care, access or emotional support. The key is whether their free will was overborne.
Gathering evidence: What helps build a case
Suspecting undue influence is one thing. Proving it is another. To succeed in court, you’ll need clear evidence that the Will-maker’s choices weren’t truly their own and that their independent judgment was overpowered.
Useful forms of evidence we’d suggest include:
- Medical reports showing cognitive decline, dementia or frailty
- Statements from doctors, carers, or family members who observed changes in behaviour or control
- Records of isolation, such as limited contact with others or cancelled visits
- Emails, texts or notes showing pressure, manipulation or exclusion
- Earlier Wills that reflected very different intentions
- Legal concerns raised by the lawyer who prepared the Will (if available)
Again, often it’s the combination of small details, not one smoking gun, that builds a compelling case.
What happens if undue influence is proven?
If a court finds that a Will — or part of it — was made while under undue influence, that part becomes invalid. What happens next depends on the circumstances.
- If the entire Will is tainted, it may be set aside completely. The estate may then be distributed under an earlier valid Will, or if none exists, through the rules of intestacy.
- If only part of the Will is affected, the court may sever that part of the Will, leaving the remainder intact.
These outcomes can trigger further disputes or require the estate to be re-administered. Probate may be delayed or revoked, and affected beneficiaries will need to be notified.
For anyone considering a challenge, it’s also important to act early. Placing a caveat on the estate can help prevent the Will being administered, before your concerns are heard.
Why legal advice matters early
Challenging a Will based on undue influence is complex, both legally and emotionally. It’s not enough to feel that something wasn’t right as the court needs to see real evidence, presented the right way.
That’s why it helps to speak with experienced litigation lawyers early, before important details fade or documents are lost. A good legal team can help you:
- Work out whether you have a claim worth pursuing
- Preserve key evidence and timelines
- Navigate the formal steps such as caveats, probate challenges or court filings
- Stay focused during what’s often a deeply personal and stressful time
In Western Australia, these matters are dealt with by the Supreme Court, and the process can move quickly once probate is granted. Getting advice early can make the difference between a strong case and a missed opportunity.
Don’t let undue influence go unchallenged
Contesting a Will is never easy, especially when you suspect undue influence. But you don’t have to shoulder the burden alone.
At Solomon Hollett Lawyers, we’re experienced in challenging and defending Wills across WA, including complex cases involving coercion, elder abuse, or family pressure. We understand the emotional and legal weight these matters carry, and we know what it takes to build a strong case.
If you believe a loved one’s Will doesn’t reflect their true intentions, now’s the time to act. Book a free 15-minute phone call with one of our team. We’ll listen, guide you through your options, and help you decide what to do next with clarity and experience on your side.
