Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

“The Estate” movie shines a spotlight on undue influence and unconscionable conduct – when someone coerces another to write them into their Will


Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon joins Robyn Hyland on Radio 4CRB to discuss undue influence, and what behaviour may constitute invalidating someone’s Will.

The Estate – a movie a little too close to reality

Unfortunately, we see it all too often where vulnerable people are coerced or unduly influenced later in life by family members, carers, or other people close to them, who try to influence that person to change their Will in a way that does not reflect their true wishes, only to benefit the influencer.

This issue was front and centre in the movie “The Estate” which was released in 2022, starring Toni Collette, Kathleen Turner, and David Duchovny.

The dark, brazen comedy showed what great lengths family members may be willing to go to get their piece of someone’s wealthy estate. Greed, desperation, humiliation, and people generally treating each other terribly, was the crux of the plot.

Here’s a summary of how the story went:

  • Two sisters, who are facing bankruptcy, learn that their aunt is terminally ill with cancer. The aunt, who the sisters believe to be extremely wealthy with a large estate, has no partner or children of her own and therefore no obvious heir to her fortune;
  • In hopes of becoming the beneficiaries of her wealthy estate, the sisters rush to their aunt’s bedside. Their plan quickly becomes complicated as the rest of their extended greedy family have the same idea and turn up at the aunt’s home;
  • The competition between the cousins escalates throughout the movie as they all try to appease their aunt and make their way into her final Will through the most crude and ridiculous ways.
  • Eventually the aunt’s health declines to a point that the cousins are asked to say their final farewells

Without spoiling the ending, for those who may wish to watch the movie, the family may not necessarily end up receiving what they expected, and their diabolical behaviour does not necessarily pay off.

As extreme and perhaps unlikely as the movie plot may seem, unfortunately these scenarios play out in real life!

This movie provides an opportunity to discuss some of the legal issues that commonly arise from these types of scenarios, when “long lost loved ones” resurface in the later years of someone’s life hoping to get their hands on an inheritance, or when family members or friends try to unduly influence someone to change their Will to benefit themselves.

What is undue influence?

From the outset, most Will-makers naturally act under influence of some kind which may benefit a particular person when deciding who to leave their most valuable assets to after they pass away.  This does not automatically invalidate a person’s Will (see Hall v Hall (1868) LR1P&D 481).

Generally, undue influence occurs when someone persuades or changes another person’s decisions due to the relationship between the two parties. Often, one party is in a position of power over the other, whether it is because of an emotional tie, having a higher education, or perhaps taking advantage of someone’s poor health, disability, or their age.

The test of undue influence was established in cases dating back to 1857 (see Boyse v Rossborough (1857) 6 HLC 1 and Wingrove v Wingrove (1885) LR 11 PD 81).

  1. To successfully dispute the validity of a person’s Will on the basis of undue influence an applicant must establish that the influence amounted to force and coercion destroying the person’s free will (see Cook v Goude (1828) 1 Hag Ecc 577);
  2. the Will-maker did not intend or desire to make the gift and was coerced into making it (see Buckley v Maddocks (1891) 12 LR (NSW) Eq 277);
  3. where the evidence is purely circumstantial (as is often the case), it must be proven that such power was exercised and because of that power, a Will was produced that did not reflect the free, independent, and voluntary will of the testator. 

Additionally, it is important to note that a person who alleges undue influence has the onus to prove the elements on the balance of probabilities  that the Will-maker has been unduly influenced more likely than the contrary (see Brown v Guss [2014] VSC 251).

How to avoid this happening

It all starts with drafting a Will with the assistance of an experienced lawyer who practices in estate planning and can provide you with independent guidance and advice.  

If you are handwriting your Will at home or have arranged a loved one to help you complete the more modern “online” or “DIY Wills” we see today, there is a lot of room for the Will-maker to be unduly influenced and not necessarily have their true wishes reflected in that document.

A lawyer who practices in estate planning can identify red flags, particularly if someone is attending the appointment with the Will-maker, answering questions on their behalf, and giving instructions, which may not accurately reflect the Will-maker’s wishes.

A lawyer who specialises in estate planning takes additional steps to satisfy themselves that the Will-maker is not being unduly influenced. This includes, but is not limited to, ensuring a third party is not in the room at the time instructions are received, asking open ended questions, and drafting detailed file notes. Further, a lawyer will follow formal requirements set down by legislation in relation to how a Will is to be drawn and executed to ensure it is legally binding and valid, as well as testing that the Will-maker has the required level of testamentary capacity to provide instructions.

This ensures that the correct procedure is followed, and integrity of the Will is preserved.

For a Will to be considered valid, it must be executed in front of two witnesses, who must witness the testator’s signature on the Will. The Will must be signed on every page, which helps ensure that no one at any time has edited a page unbeknown to the Will-maker.

If the integrity of the Will comes into question after the Will-maker passes away, it will be the witnesses who signed the document that will provide evidence to in Court about what occurred at the time the document was signed.

If a lawyer drafts the document, they will usually be one of the key witnesses who will give compelling evidence to support its validity if it ever comes into question. Although there are exceptions, there is a presumption at law that if a lawyer drafts the Will, it will be valid. This is not the case with online or DIY Wills.

What to do if you are concerned about an older relative being influenced by someone to change their Will

If you have concerns that someone is making changes to their Will because they are being unduly influenced by another party, it is important to arrange for that person to obtain independent advice from an estate planning lawyer to discuss the changes and ensure the document is updated appropriately to reflect the Will-maker’s true wishes.

An estate planning lawyer will discuss the changes and mitigate the risk of anyone unduly influencing the decisions they are making.

It can be helpful to also discuss your concerns with the Will-maker’s doctor if you believe they may be lacking testamentary capacity to make changes to their Will or that they are experiencing elder abuse from someone close to them.

In these circumstances, it is important to collect as much evidence as possible to support your suspicions. This may include collecting statements from other people who may have witnessed the behaviour or been privileged to conversations that prove the person is being unduly influenced.

If you suspect elder abuse, it is important to report the matter as soon as possible by contacting the Elder Abuse Prevention Unit who can provide confidential advice and support, as well as referral to other services that can assist.

In Queensland, if you suspect that someone has impaired capacity and are being abused or coerced, contact the Public Guardian. The Public Guardian will investigate the matter.

Each state and territory have their state-specific Guardian who can investigate these matters.

If you have concerns that a person lacks capacity, you may consider making an application to the Queensland Civil and Administrative Tribunal (QCAT) seeking a declaration about capacity under the Guardianship and Administration Act 2000 (Qld). There are analogous Tribunals in every jurisdiction around Australia.

Read more: A sordid tale of undue influence and mental capacity issues when writing a Will

Challenging a Will based on undue influence

There are many reasons that may raise suspicion that someone’s Will does not reflect their true wishes.

It may be that family members believe the deceased was coerced to make the Will, or it may be that there is a question of testamentary capacity, and whether the Will-maker knew and approved of the contents of the Will.  

When someone passes away and those left behind believe the Will is invalid, or there are questions around the circumstances under which the Will was made, the Will can be challenged by filing a Caveat in Court to prevent the issuing of a Grant of Probate. In Queensland, the Caveator must then file a Notice in Support of Caveat which outlines the grounds in support of their claim.  

Time is of the essence if you suspect a Will is invalid. Once probate is granted it is more difficult challenge a Will!

For this reason, it is important to take steps as soon as possible and seek advice from an experienced lawyer who practices in estate litigation.

The onus to prove a Will is invalid on the basis of undue influence is on the person making the claim. That person will need to put forward appropriate evidence to prove their claim.

Evidence can include:

  • medical records
  • witness statements
  • circumstances around the preparation and execution of the Will
  • identifying who prepared and arranged the Will

If a Will challenge is successful, it will stop probate from being granted, and a penultimate Will may be granted in solemn form (an application via the Court), or the rules of intestacy may apply if there are no previous Wills. If this occurs the estate will be distributed according to the intestacy rules in the relevant state or territory.

Successful applications to challenge a Will on the basis that the Will-maker was unduly are rare and difficult. It is imperative to get advice from a lawyer who practices in this complex area because there can be adverse cost consequences if you file a Caveat without any basis.

Read more: Challenging a Will based on mental capacity

Attwood Marshall Lawyers – Experts in Estate Litigation

Whether you are seeking to contest a Will or challenge the validity of a loved one’s Will, it is essential to obtain advice from an estate litigation lawyer who has the experience and skills to guide you through the legal process.

An experienced lawyer will be able to review your case to determine your prospects of success and if it is in your best interest to proceed with the claim. Proceeding with a claim that has little merit can cost you significantly, so it is important to have your case reviewed immediately before taking any action.

Our estate litigation lawyers are well-versed at representing clients across all jurisdictions in Australia.

To discuss your unique matter, please contact our Estate Litigation Department Manager Amanda Heather on direct line 07 5506 8245, email or free call 1800 621 071.

Our lawyers are available for appointments at any of our conveniently located offices at Coolangatta, Robina Town Centre, Kingscliff, Brisbane, Sydney, and Melbourne.

Book an appointment online by clicking here.

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Martin Mallon - Senior Associate - Estate Litigation

Martin Mallon

Senior Associate
Estate Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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