A will must be made voluntarily and without pressure from another person. If a will was made involuntarily or under undue pressure, the court can declare the will to be invalid.
Duress – the use of force and threats
The use of force or threats of physical violence that compel a will-maker to change his or her will amount to duress and cause the will to be invalid. Similarly, if a will-maker wishes to alter a valid will, but is prevented from doing so by force or threats, that can also amount to duress.
Undue influence – a subtle coercion
Undue influence is similar to duress, but it is more subtle. Undue influence arises, and invalidates a will, where a will-maker has been coerced to make the will because of influence exerted by somebody else.
The key question is whether the deceased’s own wishes were overborne because of external pressure from others. Persuasion alone is not enough; it must be coupled with circumstances which meant that the deceased did not make a free choice when making the will in the terms that they did.
Assessing undue influence and duress
The deceased’s circumstances at the time of making the will – particularly those that made him or her vulnerable to being exploited – are relevant in assessing whether there may have been undue influence or duress. These include illness, pain and suffering, physical weakness, and mental deterioration falling short of a lack of mental capacity. They also include dependency upon others in legal, business, social, medical, domestic or other matters.
Undue influence is particularly difficult to prove. It requires the person alleging it to satisfy the court that a person exerted undue pressure on the deceased, and that the deceased would not have made the same will had the pressure not been applied.
Challenging the validity of a will for undue influence or duress
Read about the process to challenge the validity of a will on the basis of undue influence or duress here.
