Manipulation of elderly and vulnerable family members to change their Wills under undue influence or suspicious circumstances. Attwood Marshall Lawyers Wills & Estates Partner Angela Harry discusses this interesting and increasingly prevalent area of law.
Introduction
Most families have a story of an elderly or vulnerable family member who has been influenced or even bullied by a close relative or family member to change their Will. In some cases this can also result in a transfer of property to the relative in question. Most lawyers have dealt with the unpleasant situation where adult children of an elderly parent squabble over the assets of the parent and quite often play “musical Wills” with siblings taking their parent to their own lawyers to have a Will drafted in their favour. This issue is not confined to family members and can also apply to friends, neighbours and increasingly, carers.
We have many enquiries from family members concerning the validity of Wills that have been signed by their parents or grandparents in circumstances where there are suspicious circumstances concerning the provision of instructions and signing of the Will. One of the most common scenarios that we face is that an elderly parent, after a long history of previous Wills which leaves their assets equally to their children, suddenly and without reason changes their Will shortly prior to their death to leaves their entire estate to one particular child or a friend or carer. Whilst most adult children have grounds to bring a provision claim in the event of this happening, it does not cover all the circumstances and there are usually 3 main grounds that the validity of a Will can be contested:
1. Lack of testamentary capacity
The question as to whether someone has the necessary mental testamentary capacity to provide instructions and sign a Will is a long-standing and recognised issue in the area of succession law. Many people think that if a person has been diagnosed with the onset of Alzheimer’s or dementia that this precludes them from making a new Will or signing an Enduring Power of Attorney. This is not the case and in order for a person to have sufficient testamentary capacity there are 4 recognised areas that the courts look to in determining whether someone has the necessary capacity to make a Will, namely:
(a) The Will maker (testator) must be aware and appreciate the significance of the act in the law upon which he or she is about to embark;
(b) The testator must be aware, at least in general terms, of the nature, extent and value of the estate over which he or she has a disposing power;
(c) The testator must be aware of those who may have reasonably be thought of to have a claim upon his or her testamentary bounty and the basis for and the nature of the claims of such persons;
(d) The testator must have the ability to evaluate and discriminate between the respective strengths of the claims of such persons.
The upshot of the above is that the person making the Will must have regard to their overall circumstances, the assets that they own and how these are to be distributed amongst their family members (and the consequences of their actions in drafting the Will). There are many different circumstances that apply to the issue of whether someone has the requisite capacity to properly make a Will. The Courts have stated that it is the duty of lawyers to do their best to follow instructions provided to them (with the assistance of treating doctors and family), even if they are concerned as to whether their client has capacity. It is ultimately a matter for the Court to decide the issue of capacity.
2. Knowledge and approval of the contents of the Will – “suspicious circumstances”
Even though a person may be deemed to have sufficient testamentary capacity to make and sign a Will, there is an additional element that the courts will look to in order to ensure the validity of the Will matches the testamentary intentions of the Will maker. This involves an examination of the facts and circumstances surrounding the preparation and execution of the Will support the fact that the Will maker knew and approved of the contents of the Will.
In most cases, particularly where the Will has been prepared by a solicitor and signed by the Will maker, there is a presumption that the Will maker knew and approved of its contents. However, it depends upon the circumstances of taking the instructions for preparation of the Will and the signing of the Will that will determine whether the Will maker knew and approved of its contents. In the event of there being “suspicious circumstances” surrounding the execution and/or preparation of the Will, the onus of proving that the Will maker signed the Will with knowledge and approval of its contents shifts to the persons propounding or seeking to uphold that Will. Suspicious circumstances are varied but some of the examples that have appeared in the cases are as follows:
- An unexplained change of testamentary direction (e.g. where previous Wills have left the estate to children equally and suddenly changes to one child or a carer);
- No apparent estrangement of the Will maker from disinherited beneficiary (e.g. a child is left out of the Will for no apparent reason);
- Control of a testator by a favoured beneficiary (e.g. where the child lives with the elderly parent);
- Preparation of a Will by persons known to the beneficiary rather than the Will maker (e.g. taking the parent to their own lawyer or another friend who prepares the Will);
- Suspicious conduct of the beneficiary under the Will towards the disinherited beneficiaries after the Will has been executed (e.g. attempting to hide the existence of the Will or telling lies about the Will’s existence etc.).
Although there is no strict definition of “suspicious circumstances”, most of the cases have held that wherever a Will is prepared under circumstances which raise a well grounded suspicion that it does express the mind of the Will maker, the court ought not to pronounce in favour of the Will unless that suspicion is removed (see Tyrrell v Painton (1894) P151). Another common circumstance is where a beneficiary has relayed the instructions for the preparation of the Will to the person drafting it (i.e. a solicitor) (see Astridge v Pepper (1970) 1 NSWLR 542).
In many cases where there appears to have been suspicious circumstances (even when solicitors have been involved in the preparation and signing of the Will), it is common practice for beneficiaries who have been left out of the Will to seek particulars of the circumstances of the preparation and signing of the Will from the lawyers involved. In some cases, inexperienced lawyers in this area can make fatal mistakes in relation to accepting instructions from relatives of the Will maker and not properly testing the capacity and/or knowledge and approval of the contents of the Will with their client. This may also lead to a possible action for professional negligence against the lawyers by the beneficiaries who have been affected by the negligence of the lawyer.
3. Undue influence (and fraud)
The issue of undue influence being used by a family member or beneficiary in relation to a person making or changing their Will is a very difficult area to prove. A very succinct statement of the law in relation to this area is as follows:
“To be undue influence in the eye of the law there must be – to sum it up in a word – coercion…..The testator is in such a condition that if he could speak his wishes to the last, he would say, “This is not my wish but I must do it (see Wingrove v Wingrove (1885) 11 PD 81).
It is no surprise that with this standard required in order to establish undue influence that there are not many cases where this has been upheld by the courts. In most areas of law the issue of undue influence can be quite straightforward, depending upon the relationship between the parties involved. However, when it comes to the area of succession law and people making Wills, by definition this involves close family relationships between the person making the Will and their relatives or family members. These relatives and family members have a very close relationship with the person making the Will and will certainly be able to influence the elderly parent or grandparent to make provision for them in their Will. This would appear to be behaviour which is tolerated in this area of law because of the very close relationships involved within families. It is therefore very difficult to prove undue influence and the onus of proof shifts to those who allege it. Although there have been some very clear cases of coercion or bullying by relatives to elderly parents or grandparents, it would appear to be quite exceptional circumstances that will apply before this particular area can be proved.
The areas of fraud are also very difficult to prove but seem to be very clear when fraud has taken place (e.g. people forging signatures on homemade Wills or pretending to be the person signing the Will etc.).
Conclusion – How to get some advice
Challenging the validity of a Will can be a very complicated and stressful experience for those who have been affected by this type of conduct from their family members. Emotions can run high and some children or grandchildren simply cannot accept that their parent or grandparent has chosen to change their Will and leave their assets in a certain way. In most cases you can engage an experienced lawyer in this area to investigate the circumstances of the preparation and signing of the Will for a relatively modest fee. In some cases, lawyers will attend to this on a “no win no fee” basis but usually only where the facts would appear to support a provision claim or a clear case of lack of capacity or suspicious circumstances.
