In this podcast, Murdoch Lawyers’ Agnes Derrick from our Litigation and Insolvency team discusses an issue which is, unfortunately, becoming increasingly more common, and that issue is “undue influence” in the making of a Will.
[powerpress]TRANSCRIPT
What is undue influence with respect to a Will?
Undue influence occurs when the person making their last Will is pressured or coerced into making that Will, or giving a gift under that Will, that does not accurately reflect that person’s independent free wishes. Commonly, the person subjected to the undue influence will be vulnerable to coercion, and may be ill, elderly, or dependant on the person seeking to exert the undue influence over them.
Why and how does undue influence occur?
Undue influence usually occurs because there is an imbalance of power between the person making the Will, and the person coercing him or her to make the Will, or give gifts under the Will, contrary to the Will maker’s own wishes. A common scenario for undue influence is that of an elderly parent, who relies on an adult child for assistance. The adult child may pressure the parent, by indicating that the assistance provided will be withdrawn, unless the parent leaves more to the adult child under the Will than what the parent would otherwise intend.
What should you do if you believe that undue influence occurred in the making of someone’s Will?
If you believe that someone’s Will, or a gift given under that Will, may have been procured through undue influence, then specialist legal advice should be obtained as soon as possible. You should also keep very detailed records of everything that has occurred in case that information is needed as evidence in any future Court proceeding in respect to the Will.
Your lawyer will be able to advise you on your prospects of contesting the Will because of alleged undue influence. A Court must ultimately be satisfied that the Will in question does not reflect the true wishes of the deceased, and that can be difficult to prove given that most times the person who made the Will has passed away before the Will comes to light, and so is not available to give evidence as to what actually occurred in the making of the Will, and what their true wishes were.
If there has been undue influence, what happens to the Will?
An allegation of undue influence is a serious matter which, if proven, will invalidate the entire Will. If a Court finds an entire Will is invalid as a result of undue influence, then if the deceased made an earlier, valid, Will, then that Will may apply. If there is no earlier, valid, Will, then the Rules of Intestacy will apply to the deceased’s Estate.
Is this something Murdoch Lawyers can help with?
It certainly is. The Litigation team at Murdoch Lawyers is experienced in dealing with all types of deceased estate and Will disputes, including undue influence. If you, or someone you know, need advice on a possible undue influence on a Will-maker, then please call us on 1300 068 736 and we will be able to assist you.
