When a Will is unexpectedly changed, usually in favour of one person, it often raises eyebrows. Was it the true intention of the person who made the Will, or were they pressured?
This is where the legal concept of undue influence comes into play. It’s a serious concern in estate litigation, especially where someone vulnerable, like an elderly or ill person, may have been manipulated.
In this article, we break down what undue influence really means in the context of Will disputes, how it’s proven, and what can happen if it’s found to be true.
What is undue influence?
Undue influence, in the context of Wills, refers to a situation where a person exerts such pressure or control over the Will-maker (also known as the testator) that the Will no longer reflects the testator’s true intentions. Instead, it becomes the product of another person’s influence.
This influence might not always look aggressive, like threats or force. It can be subtle, emotional or manipulative, like persistent psychological pressure, dependency, isolation from others, or the withholding of care.
What matters legally is that the testator’s independent judgment was overpowered at the time of making the Will. The question is not whether the testator was influenced, but whether the influence went so far that it actually coerced the testator to make final decisions that do not reflect their true intention.
If proven, the Will (or the part of it affected) may be declared invalid.
How does undue influence affect the validity of a Will?
If undue influence is proven, the Will or the specific parts impacted by the influence can be declared legally invalid. That means the court may disregard the affected document entirely or revert to an earlier valid Will if one exists. In some cases, if there’s no previous valid Will, the estate may be distributed under the rules of intestacy, which follows a strict formula set by the law. In Western Australia, these rules are found in the Administration Act 1903 (WA)
If you’re unfamiliar with how intestacy works, we’ve broken it down in detail in our dedicated article What happens if you die without a Will in Australia?
Signs of undue influence in action
Undue influence is often subtle and happens behind closed doors, making it difficult to detect until after the Will-maker has passed away.
However, there are some warning signs and red flags that families should watch for, such as:
- Sudden or last-minute changes to a Will, especially if they benefit one person disproportionately.
- Isolation of the Will-maker from family, friends, or long-time advisers.
- A new person becoming overly involved in the Will-maker’s personal, financial or legal affairs.
- The Will-maker appears fearful, anxious or confused when discussing their decisions.
- Unusual secrecy or reluctance to share the contents of the new Will.
- A beneficiary arranging or attending legal appointments on the Will-maker’s behalf.
- Removal of previous beneficiaries without explanation, or inclusion of someone unexpected.
- Dependence on a single individual for daily care, transport, or communication.
Usually, where undue influence is at play, more than just one of the above factors are present. If multiple signs of undue influence are present, particularly alongside cognitive decline or illness, it may be worth investigating further.
Proving undue influence: legal tests and burden of proof
Proving undue influence in a Will dispute is challenging. Unlike claims about testamentary capacity (which often rely on medical records) undue influence focuses on behavioural patterns and interpersonal dynamics, which are usually undocumented and hard to prove. Importantly, mere suspicion or opportunity to influence a testator is insufficient, and there must be clear evidence of coercion.
Here’s how the legal system approaches it:
- The burden of proof sits with the person alleging undue influence. They must show, on the balance of probabilities, that the Will reflects someone else’s wishes (not the testator’s).
- Courts look at the effect of the influence, not necessarily the method. Subtle manipulation or emotional pressure can be just as compelling as overt threats.
- Evidence may include:
- Testimony from witnesses (family, friends, carers, lawyers)
- Medical reports showing vulnerability or cognitive decline
- Details about the influencer’s involvement in the Will-making process
- Patterns of isolation, control, or dependency
It’s worth noting that simply being present during the Will-making process (or benefiting from a Will) is not enough on its own to prove undue influence.
Remedies and what the court can do
If a court finds that a Will, or part of it, was the result of undue influence, it has several options:
- Invalidate the entire Will, if the undue influence tainted the whole document
- Invalidate only the affected parts, keeping the remainder intact if possible
- Revert to a previous valid Will, if one exists
- Distribute the estate under intestacy laws, if no earlier valid Will is available
- Award legal costs (often from the estate, though not always)
In rare cases, the court might also order compensation or redistribution if assets have already been transferred under a disputed Will. Ultimately, the court’s goal is to ensure the estate reflects the true, voluntary wishes of the deceased.
What to do if you suspect undue influence
If you’re concerned that a loved one’s Will was made under pressure or manipulation, here’s some steps you can take:
- Seek legal advice immediately – Undue influence cases are complex and time-sensitive. The sooner you speak with a lawyer, the better the chances of preserving evidence and taking the right action
- Gather documentation – This might include past versions of the Will, medical records, correspondence, or notes that reflect the deceased’s intentions before the changes occurred.
- Talk to others close to the deceased – Family, friends, carers or long-time advisers may have seen warning signs or know about changes in behaviour or relationships.
- Don’t delay – Time limits may apply in challenging a Will, and early steps can be the difference between a successful claim and one that falls short.
Taking prompt and decisive steps ensures you’re in the best position to protect your loved one’s true wishes and uphold their legacy.
The right advice, at the right time
Undue influence can quietly reshape someone’s final wishes, often leaving behind confusion, conflict, and heartache. While proving it is no small task, understanding the signs and acting early can make all the difference. At Solomon Hollett Lawyers, we’ve helped many families navigate these sensitive situations with care, clarity and professionalism. If you’re looking to protect a loved one’s estate, or safeguard your own, we’re here to help. Contact us today for a confidential chat with our team.
