Modernising Wills Law: Critical changes to undue influence and knowledge and approval

The Current Legal Framework

The law governing wills in England and Wales is primarily based on the Wills Act 1837, with many common law principles dating back to the 19th century. While this longevity speaks to the robustness of these principles, it also means that the law hasn’t always kept pace with societal changes, including longer lifespans, evolving family structures, and increased vulnerability among elderly testators.

The fundamental principle underpinning our wills law is testamentary freedom – the right of individuals to dispose of their property as they wish upon death. As Chief Justice Cockburn eloquently stated in the seminal 1870 case of Banks v Goodfellow, “the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead” than could be achieved through rigid legal rules. This principle remains at the heart of our legal system, but it must be balanced against the need to protect vulnerable testators from exploitation.

Undue Influence: The Current Position

The Legal Test

When clients approach me about contesting a will, undue influence is often a central concern. They suspect that someone has pressured or manipulated the testator into making provisions they wouldn’t otherwise have made. However, under the current law, proving undue influence in the context of wills is notoriously difficult.

Unlike in other areas of law, there is no presumption of undue influence in wills cases. This means that the person challenging the will must prove that:

1. Coercion was applied to the testator.
2. The coercion overpowered the testator’s wishes.
3. The coercion resulted in a disposition that the testator would not otherwise have made.

The burden of proof rests entirely on the person alleging undue influence, and the standard of proof is high. As the courts have established, the influence must amount to “coercion” – the testator’s will must have been overborne, not merely influenced. This is a significant hurdle for many clients, particularly when the alleged undue influence occurred behind closed doors with no witnesses present.

Key Authorities

A famous quote on testamentary undue influence from Hall v Hall (1868), by Sir J P Wilde highlights the difficulty in establishing undue influence, “it is not enough to show that the circumstances of the case are consistent with the hypothesis of undue influence; what must be shown is that they are inconsistent with a contrary hypothesis.” This stringent test has made successful undue influence claims rare in practice.

In more recent cases such as Edwards v Edwards [2007] WTLR 1387 or Rea v Rea [2024] EWCA Civ 169, the courts have continued to apply this high threshold. In these cases, despite evidence of the testator’s vulnerability and the beneficiary’s involvement in the will-making process, the court found insufficient evidence of actual coercion. This illustrates the practical difficulties faced by those seeking to challenge a will on grounds of undue influence.

Knowledge and Approval: The Current Position

The Legal Test

Another common ground for challenging wills is lack of knowledge and approval. This doctrine requires that a testator knew and approved the contents of their will. While there is a presumption that a testator who signs a will knows and approves its contents, this presumption can be rebutted if there are suspicious circumstances surrounding the will’s execution.

The current approach to knowledge and approval is somewhat inconsistent. Courts have applied different tests and approaches, creating uncertainty for practitioners and clients alike. In some cases, courts have required those propounding the will to prove knowledge and approval when suspicious circumstances exist. In others, they’ve taken a more holistic approach, considering all the evidence to determine whether the testator knew and approved the will’s contents.

Key Authorities

The case of Gill v Woodall [2010] EWCA Civ 1430 illustrates this complexity. Mrs Gill, who suffered from agoraphobia and was heavily dependent on her husband, made a will leaving her entire estate to charity, disinheriting her only daughter. Despite the will being properly executed and Mrs Gill having testamentary capacity, the Court of Appeal held that she did not know and approve the contents of her will. The court took a holistic approach, considering all the evidence, including Mrs Gill’s relationship with her daughter and her mental health issues.

Conversely, in Sharp v Hutchins [2015] EWHC 1240 (Ch), the court emphasized that the burden of proving knowledge and approval only shifts to the propounder of the will when there are suspicious circumstances. This inconsistency in approach has created challenges for both practitioners advising clients and for the courts.

The Law Commission's Proposed Reforms

Undue Influence: A New Statutory Doctrine

The Law Commission has recommended a structured approach to testamentary undue influence, introducing a statutory doctrine with both evidential presumptions and a definition of undue influence.

Under the proposed reforms, undue influence would be defined as pressure that:

• Causes the testator to make a will or part of a will that they would not otherwise have made.
• Was applied deliberately with the intention of making the testator make a will or part of a will that they would not otherwise have made.

This definition maintains the focus on coercion but provides clearer guidance on what constitutes undue influence in the testamentary context.

Perhaps most significantly, the Commission recommends introducing evidential presumptions of undue influence in certain circumstances. These presumptions would arise where:

• The beneficiary was in a position of influence over the testator.
• The will calls for an explanation (i.e., the disposition is not readily explicable by the relationship between the testator and the beneficiary)

If these conditions are met, the burden would shift to the beneficiary to provide evidence that undue influence did not occur. This represents a substantial change from the current position, where the burden always rests on the person alleging undue influence.

The Commission has been careful to balance this shift with appropriate safeguards. The presumption would only arise in specific circumstances, and it would be rebuttable. The beneficiary could provide evidence to show that the testator received independent advice, that the testator’s decision was rational, or that there was no actual coercion.

This approach draws inspiration from other jurisdictions, such as Australia, where similar presumptions have been successfully implemented. It also aligns more closely with the approach to undue influence in other areas of law, such as lifetime gifts and contracts, where evidential presumptions already exist.

Knowledge and Approval: A Statutory Test

For knowledge and approval, the Law Commission has recommended clarifying the law by introducing a statutory test. Under this test, a court would need to be satisfied that the testator:

• Knew that they were making a will and understood its nature and effect.
• Knew and approved the contents of the will.

The Commission also recommends that certain factors should trigger a requirement for the propounder of the will to prove knowledge and approval. These include situations where:

• The testator was unable to read the will due to blindness or illiteracy.
• The will was prepared or executed with the involvement of a beneficiary.
• There are other circumstances that raise doubt about whether the testator knew and approved the contents of the will.

This approach provides greater clarity and consistency while still allowing courts the flexibility to consider all relevant circumstances.

The Commission’s recommendations on knowledge and approval are particularly important considering the increasing prevalence of dementia and other cognitive impairments among the elderly population. As people live longer, more testators may have diminished cognitive abilities while still retaining sufficient capacity to make a will. In these cases, ensuring that the testator truly understood and approved the contents of their will becomes even more crucial.

Practical Application: Case Studies

To illustrate how these reforms might work in practice, let’s consider two hypothetical scenarios based on common situations encountered in legal practice.

Case Study 1: The Vulnerable Testator and the Carer

Mrs. Smith, an 85-year-old widow with early-stage dementia, lives alone but relies heavily on her paid carer, Jane. Mrs. Smith has two children who visit regularly. In her previous will, made five years ago, Mrs. Smith left her estate equally between her children. However, six months before her death, Mrs. Smith made a new will leaving 75% of her estate to Jane and only 25% to be divided between her children.

Current Law

Under the current law, if Mrs. Smith’s children wanted to challenge the will on grounds of undue influence, they would need to prove that Jane coerced Mrs. Smith into making the new will. This would be extremely difficult without direct evidence of coercion.

Proposed Reforms

Under the proposed reforms, the situation would be different. Jane was in a position of influence over Mrs. Smith due to the carer-patient relationship and Mrs. Smith’s vulnerability. The substantial gift to Jane, a paid carer, at the expense of Mrs. Smith’s children, calls for an explanation. These circumstances would trigger the evidential presumption of undue influence.

The burden would then shift to Jane to provide evidence that undue influence did not occur. She might try to show that Mrs. Smith received independent legal advice before making the will or that Mrs. Smith had rational reasons for the change, such as estrangement from her children or exceptional care provided by Jane. Without such evidence, the presumption of undue influence would stand, and the will might be set aside.

Case Study 2: The Complex Will and the Elderly Testator

Mr. Jones, a 90-year-old with poor eyesight, made a will with complex trust provisions that significantly altered his previous testamentary intentions. The will was prepared by his nephew, a solicitor who was also named as a beneficiary and executor. Mr. Jones did not receive independent advice, and the will was not read over to him before he signed it.

Current Law

Under the current law, there would be suspicious circumstances that might rebut the presumption that Mr. Jones knew and approved the contents of the will. However, the approach the court would take is somewhat unpredictable.

Proposed Reforms

Under the proposed reforms, the involvement of a beneficiary in the preparation of the will, combined with Mr. Jones’s inability to read the will due to poor eyesight, would trigger the requirement for the propounder of the will to prove knowledge and approval. The nephew would need to provide clear evidence that Mr. Jones understood the will’s contents and their effect, which might be difficult given the circumstances.

These case studies demonstrate how the proposed reforms could provide greater protection for vulnerable testators while also offering more clarity and predictability for all parties involved.

Implications for Legal Practice

Advising Clients Contesting a Will

The proposed reforms would have significant implications for practitioners advising clients who wish to contest a will. The introduction of evidential presumptions for undue influence would make it easier to challenge wills in certain circumstances, particularly where there is a relationship of influence, and the disposition calls for an explanation.

However, practitioners should be careful not to overstate the impact of these reforms. The presumptions would only arise in specific situations, and they would be rebuttable. Clients would still need to gather evidence about the testator’s relationships, intentions, and the circumstances surrounding the will’s preparation and execution.

The statutory test for knowledge and approval would provide greater clarity and consistency, making it easier for practitioners to advise clients on the likelihood of success. However, the test would still require a careful assessment of the evidence, and the outcome would depend on the specific facts of each case.

Advising Clients Making Wills

For practitioners advising clients making wills, the proposed reforms underscore the importance of proper procedures, particularly when the client is vulnerable or making provisions that might seem unusual.

When advising clients who wish to make substantial gifts to people who might be seen as having influence over them, practitioners should:

• Ensure the client receives independent legal advice, with no connection to the beneficiaries.
• Document the client’s reasons for making the dispositions, particularly if they might seem unusual.
• Consider arranging a medical assessment if there might be questions about the client’s capacity.
• Ensure that beneficiaries are not involved in the preparation or execution of the will.

These steps would help rebut any presumption of undue influence that might arise after the client’s death.

For knowledge and approval, practitioners should ensure that the will is read over and explained to the client, particularly if they have visual impairments or literacy issues. The client should be asked to confirm their understanding of the will’s contents and effect, and this confirmation and the process should be documented.

Practical Guidance for Clients

For Clients Considering Contesting a Will

If you suspect that a loved one’s will was made under undue influence or without proper knowledge and approval, consider the following steps:

• Act promptly: The more contemporaneous the action, the more likely the evidence will be fresh and less open to corruption.
• Gather evidence: Collect any evidence about the testator’s relationships, intentions, and the circumstances surrounding the will’s preparation and execution. This might include medical records, correspondence, witness statements, and financial records.
• Seek specialist advice: Consult a solicitor who specializes in contentious probate. They can assess the strength of your case and advise on the best course of action. Not all solicitors have experience in this niche area, so look for someone with specific expertise in will disputes.
• Explore alternative grounds: Undue influence is just one ground for challenging a will. Others include lack of testamentary capacity, lack of knowledge and approval, fraud, and undue execution. A specialist solicitor can advise on which grounds might be most appropriate for your situation.
• Consider mediation or ADR: Contentious probate disputes can be emotionally and financially draining. ADR can offer a less adversarial way to resolve disputes, preserving family relationships and potentially saving costs. However, this should be pursued as part of a claim, rather than an end in itself.

For Clients Making Wills

To ensure your will reflects your true wishes and is less vulnerable to challenge:

• Use a qualified professional: While DIY wills are legal, they’re more susceptible to challenges. A solicitor can ensure your will is properly executed and reflects your intentions. They can also provide valuable advice on tax planning and other considerations. If you pay for a Primark price for a will, do not be surprised if you receive a Primark
• Be transparent: If you’re making unusual dispositions, explain your reasoning to your solicitor and consider documenting it. This could be through a letter of wishes or by having your solicitor make detailed attendance notes.
• Review regularly: Update your will regularly, especially after significant life events such as marriage, divorce, or the birth of children. A will that reflects your current circumstances and relationships is less likely to be challenged.
• Choose executors carefully: Your executors will be responsible for administering your estate according to your wishes. Choose people who are trustworthy, competent, and likely to outlive you. Consider appointing professional executors for complex estates.
• Discuss with family: While you’re not obliged to discuss your will with family members, doing so can sometimes prevent disputes after your death. If family members understand your reasoning, they may be less likely to challenge your will or at least have less of a basis for such a challenge.

Conclusion

The Law Commission’s proposed reforms to undue influence and knowledge and approval represent a significant step forward in modernising wills law. By providing clearer definitions, introducing evidential presumptions, and establishing more consistent tests, these reforms aim to strike a better balance between testamentary freedom and protection from exploitation.

For practitioners, the reforms would provide greater clarity and consistency, making it easier to advise clients on both making and contesting wills. For clients, the reforms would offer greater protection for vulnerable testators while still respecting the principle of testamentary freedom.

While the path to implementation may be long, the direction of travel is clear: towards a wills law that better serves the needs of contemporary society while preserving the fundamental principle of testamentary freedom.

If you have concerns about a will or are considering making or updating your own will, I encourage you to seek specialist legal advice. The emotional and financial stakes are too high to navigate these waters alone, and professional guidance can make all the difference in protecting your interests and your legacy.

Please contact Paula Shea to discuss making or updating your will or Thomas Middlehurst if you are or may be involved in a will dispute.