Leaving People Out – Undue Influence Or Fraud
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Want to make a start on your will?
Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.
This really comes down to the testator being pressurised into making a will in certain terms. It may be more readily inferred with an elderly or infirm testator which is the reason that a solicitor will insist on seeing your elderly parent alone.
Unlike sanity there is no presumption of undue influence. It is necessary to prove there was pressure sufficient to overwhelm the wishes of the testator. It is not enough to show that a relationship such as husband and wife, brother and sister or doctor and patient existed between the testator and the beneficiary.
For one thing it is surely natural for a person to leave money to his spouse or child. If anyone wishes to allege undue influence he must prove it rather than the person propounding the will having to disprove it.
It is not uncommon for disappointed family members to try and allege undue influence.
This is particularly so where an elderly person leaves his estate to a neighbour, for example, who has cared for him during his final years. The family member concerned may not have seen the deceased for many years but will often consider that something underhand has taken place. He may then try to allege undue influence but it is an unwise man who alleges undue influence without reasonable grounds to support it. Specific acts of the alleged influence must be cited.
For example, if acts of violence are alleged, details of the incidents must be provided. It should also be noted that undue influence on the testator to leave money or goods to another party may be alleged. For example, a woman might exert pressure on the testator to leave money to her child.
(search for https://www.makingawill.org.uk/text-before-you-make-your-will-page-104)
It will be seen from the above that challenging a will is not that easy and will inevitably cause ill-feeling in the family. Moreover, the costs of litigation can soar as the arguments drag on. Aggrieved family members may therefore try to bring themselves within one of the classes specified in the Inheritance (Provision for Family and Dependants) Act 2005.
The list of persons eligible to make application is set out in section 1(1) of the Act as amended by the Law Reform (Succession) Act 2005. Those applying under the Act make application for financial provision from the estate of the deceased on the grounds that the will or intestacy did not make reasonable financial provision for them.
1. The wife or husband of the deceased.
2. The former wife or husband of the deceased who has not remarried.
3. A cohabitant of the deceased.
4. A child of the deceased.
5. Any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage.
6. Any person (not being a person included in the above) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
The application of this Act and the numerous cases decided under it would make a website in itself. For the purposes of making your will, you need simply to be aware of the existence of this Act and the classes of people who can apply.
You need also to consider carefully your reasons for leaving them out and whether they can be upheld. It is strongly recommended that if you wish to omit someone from your will you seek professional advice unless the reasons for doing so are overwhelmingly compelling.