Acting to stop harm: the FCA and Appointed Representatives
In this two part blog series we will deal first with undue influence in the context of a will and then undue influence in relation to life time gifts.
We are seeing an increasing number of cases involving undue influence both in the context of lifetime gifts and wills. Often the former come to light when an estate is being administered and it transpires assets thought to belong to the deceased have in fact been transferred to other family members, invariably children. In some instances both lifetime gifts and the will itself are open to potential challenge on the grounds of undue influence. Whilst the concept of undue influence is often familiar to the lay client, what is less well known is that the courts take a different approach when dealing with undue influence in the context of wills when they are dealing with life time gifts.
An undue influence claim in the context of a will comes about when it is suspected that the deceased has done something that they might not have done had it not been for the influence of another. This is invariably the main beneficiary under the deceased’s current will or at least someone who is set to benefit considerably more than they were to benefit under a previous will or intestacy.
In these cases the deceased’s own judgement has been abandoned having succumbed to the manipulative behaviour of another. In order to succeed, the claimant must be able to show that the deceased was coerced into making a Will, which in effect means that the person making the Will was influenced to the extent that their free will was completely oppressed.
Direct evidence of undue influence is unusual, given that the very nature of the act means that it happens behind closed doors hence these claims not always straightforward and successful cases of undue influence (that are reported) are few and far between. However, earlier this year judgment was given in one such case.
Re Chin  EWHC 523 (Ch) saw the will of a mother of five children challenged by one of her daughters who, along with her sisters, had been disinherited with the majority of the estate passing to the deceased’s only son. The deceased had also made a significant lifetime gift of property to her grandson, which was also challenged by her daughter. The deceased did not speak English and it was alleged that her husband was an abusive and controlling man who believed that married daughters belonged to the husband’s family and should not inherit as a result. Mr Justice Jarman said:
It is important to emphasise that Mr Chin and Winston were and are entitled to arrange their affairs in accordance with the tradition which they followed. They were and are entitled to express freely the view that others should do the same, and to use persuasion to that end.
It is clear in my judgment on the findings I have already made that from a time shortly after his wife’s stroke, Mr Chin began to put pressure on his wife to leave her share of Southchurch Road to the male line, and that Winston was aware of his parents’ argument on the issue.
What is not permissible is for the pressure or persuasion to be such that Mrs Chin succumbed to it for the sake of a quiet life to the extent that it overbore her wishes.”
The Chin case is a good example of the type of scenario commonly seen in these types of case whereby one child benefits over other children and the decision is not supported by what were understood to be the deceased wishes prior to death. Another possible warning sign is where the primary giver, particularly of a vulnerable or elderly individual, benefits greatly from a will. In these types of cases that person has often demonstrated a level of control over the deceased affairs in their lifetime. They might for example have made the appointment with a solicitor or will writer for the deceased to make a will and given initial instructions on their behalf.
In the absence of sufficient evidence to prove undue influence in the context of a Will, prospective claimants may wish to consider whether there could be causes for the Court to state that the deceased did not know and approve the Will contents. Provided there are suspicious circumstances about how the Will came to be made, a claim for want of knowledge and approval may have higher prospects for success than a claim for undue influence (and indeed in the Chin case Mr Justice Jarman also concluded that he could not be satisfied that the deceased knew or approved of the contents of applicable will at the time it was signed).
In the second blog in this series we will look at undue influence in relation to life time gifts.
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