Challenging a Will where you suspect coercion

Yet sadly that is not always the case. There are hundreds of cases each year where people are coerced into writing a Will that doesn’t reflect what they truly want, especially when they are elderly or vulnerable. Often it is someone they know and trust who is seeking to take advantage.

Parveen Sidhu, Wills and Probate Disputes lawyer at Alsters Kelley law firm, says: “When this happens, it can often lead to a dispute after someone has died, between those who suspect their loved one has been coerced and those alleged to have taken unfair advantage. This is particularly an issue among the terminally ill and elderly people and, more recently, among those who have found themselves cut off from their usual support networks.”

If you suspect undue influence or coercion has taken place when someone was making their Will, it might be possible to challenge the terms of the Will and get it invalidated. By pursuing this action, you can seek to get its provisions amended to reflect more closely what your loved one would have wanted had their wishes not been overlooked.

You do have to react quickly if you want to mount a challenge and you’ll need advice from an experienced lawyer who understands the grounds on which a claim of undue influence can be brought, along with any other legal options that may be available to you depending on the specifics of your case.

Circumstances that may suggest coercion in Will writing

So what are some of the tell-tale signs that a loved one might have been coerced or manipulated into writing a Will that does not reflect what they wanted?

These include where:

• a new Will has been prepared which benefits someone unexpected, such as a neighbour, carer or new friend;
• an existing Will has been changed to make greater provision for someone who was previously down to receive only a modest inheritance;
• a Will has been created or amended in what feels like a rush and with the necessary arrangements made by someone who stood to gain a substantial benefit;
• a Will has been created or amended in terms which are surprising or significantly different from your loved one’s previously expressed intentions or a prior Will;
• a Will has been amended to cut someone out in order to make greater provision for someone else that you suspect had been negatively influencing a loved one’s opinions;
• a Will has been created or amended at a time when your loved one was very ill, frail or particularly vulnerable; or
• a Will has been created or amended in order to benefit someone that your loved one had become dependent on and who could fairly be said to ‘have their ear’.

Proving undue influence

The next step is proving that undue influence has occurred. To do this, you’ll need to show that the terms of your loved one’s Will are so far removed from what was reasonably expected that there can be no tenable explanation other than that undue influence was exerted.

This is a difficult challenge to meet and requires you to prove not only that your loved one was persuaded to write their Will in a certain way, but rather that they were positively compelled to do so through coercion which they were powerless to resist.

This may be hard, given that most undue influence takes place behind closed doors and without an obvious evidence trail. However, don’t worry because your lawyer will be aware of this possibility and able to spot any subtle signs suggesting coercion may have taken place.

Your lawyer can also assess whether the facts of your case lend themselves to the Will being attacked on other legal grounds, such as your loved one lacking the mental capacity needed to understand what they were doing at the time the Will was made.

Relevant factors

In establishing whether undue influence has occurred, a range of other factors will be taken into consideration, mainly aimed at determining how easily your loved one could have been manipulated.

The most important considerations will be their physical and mental health at the time the Will was prepared, as well as how much they relied on others to ensure they were well looked after on a day-to-day basis.

If your loved one can be shown to have been frail and largely dependent on the alleged manipulator, then a claim for undue influence could potentially be brought.

Objecting to a Will on grounds of undue influence

If you suspect a loved one has been pressured into writing a Will they wouldn’t want, it’s vital to seek help from a legal expert immediately, and ideally before the Will has been executed.

If no application has yet been made for a grant of probate to be issued, your lawyer might be able to lodge a caveat with the Probate Registry to stop any powers being exercised under the terms of the Will, until its validity has been confirmed.

Where probate has already been granted, your lawyer will immediately move to contact the executors of the Will to put them and any other beneficiaries on notice that a possible challenge is being considered. The challenge will have to be resolved before the affairs of your loved one can formally be dealt with.

Where a house or other property is involved, your lawyer may also seek to negotiate an agreement which prevents anything being disposed of pending dispute resolution. They could choose to support this with the registration of a caution or restriction at HM Land Registry if they consider your claim to have a reasonable chance of success.

When might a potential Will dispute to go to court?

While court is an option, it can often be avoided as many will dispute cases can be resolved in other ways. These could involve negotiations supported by a lawyer or specially-trained mediators to secure an out-of-court settlement.

Where Will dispute cases do end up before a judge, there is a structured process to make sure claims are fully scrutinised. This provides plenty of further opportunities for an amicable resolution to be achieved to avoid a trial.

Is there a time limit for challenging a Will?

The amount of time you have to challenge a Will varies depending on the grounds for your claim. It could range from six months from when the grant of probate was issued to several years. The best thing to do if you suspect coercion in a Will is to seek legal advice as soon as you have any concerns.

For further information, please contact Parveen Sidhu on 01926 356000 or email parveen.sidhu@alsterskelley.com.