Fair reflection, or unduly influenced?

The issue?

It's often the case that as parents get older, their children begin to take on more responsibility for their care and wellbeing, repaying the years of love and support that those parents have given in turn. 

However, due to a variety of factors, including geography, wealth or having families of their own, it can sometimes be one child in particular that ends up taking most or all of the responsibility for caring for a parent or elderly relative. This can lead to some children asking their parents to update their wills to give them a greater inheritance in recognition of the care they've provided. While this may in some cases reflect the parent’s wishes, there may be cases where this can give rise to problems down the line, as the will may be open to challenge on the grounds that the parent only made the will as a result of the child’s undue influence on them.

Undue influence?

As a brief summary, there are two kinds of undue influence, actual and presumed. 

Actual undue influence is when a person is subject to direct pressure or coercion by another. This might include threats, harassment or manipulation. In the context of wills, undue influence occurs when someone coerces or manipulates the testator into making or changing their will to benefit them, the influencer, or someone else, rather than representing the testator’s true wishes. Normal influence (ie persuasion or general discussion) isn’t enough to overturn a will, however, it has to be undue influence sufficient to overcome the testator’s volition. These cases require direct evidence of undue influence and are, therefore, harder to prove. 

Presumed undue influence on the other hand is more nuanced and requires less direct evidence. In these cases, a presumption of undue influence arises where there is a relationship of “trust and confidence” between the parties, and where one person in a dominant position takes advantage of the other’s vulnerability or dependence. The relationship between a parent and a child is an example of a relationship where the presumption arises, and the law will assume the dominant person may have taken advantage of the other person’s vulnerability or dependence. There will often be a transaction or change in circumstances here which leads a court to presume undue influence, such as where a parent changes their will to benefit one child more than others suddenly, where they may have previously favoured them all equally. As a result, the burden will shift onto the party presumed of unduly influencing the testator to explain how the transaction (or will in this case) came to be.    

Effect?

If undue influence is established, the transaction affected can be set aside. Generally, a will that’s tainted by undue influence can be set aside by the court, and the parties can be restored to their original position under a previous will, though the remedy will also be affected by the facts of each case, and the person who suffered as a result of undue influence may seek other remedies (such as damages, injunctions, or rescission).

Commentary

It's easy to understand why children caring for their relatives might look to persuade that relative to make greater provision for them in their will, to reflect the kind and generous care they've provided for them in their lives. In some cases, this will be the genuine wish of the testator. However, children looking to persuade their relative to change their will need to be careful, as they may overstep the line, and go from merely persuading their relative, to instead unduly influencing them to do something they may not otherwise have wanted to do. This may lead to the will in question being rendered invalid if a claim is brought. 

In our experience these cases are often costly for all the parties involved, both in money and time spent.  We'd suggest that it'd preferable for all involved to discuss any changes as a family, to ensure that any changes being considered are known, and for the parent considering a change to their will to first take independent advice from a solicitor without their children’s input before any changes are made.