The doctrine of undue influence has featured in case law over the centuries. In view of that history, you would hope that the doctrine would be easily defined and established, however in the words of Lord Justice Mummery “fundamental misconceptions persist even though the doctrine is over 200 years old and its basis and scope were examined by the House of Lords in depth […in] RBS v Etridge”.

With that in mind, is it possible to avoid those misconceptions when attempting to bring a claim of undue influence? Here, we look into some leading cases and new developments in the area which clarify the circumstances in which undue influence may be used to challenge the validity of a Will.

Royal Bank of Scotland v Etridge [2002]

In this case, the House of Lords were tasked with determining whether Mrs Etridge was unduly influenced when she offered her share of the family home to the RBS as security against her husband’s debts. The House determined that RBS had a duty to take reasonable steps to ensure that the transaction had been clearly explained to both Mr Etridge and Mrs Etridge. Of key importance it also defined two types of undue influence:

1. Actual undue influence: where there are acts of “improper pressure or coercion, such as unlawful threats”. The burden of proof is on the person bringing the claim to prove actual undue influence.

2. Presumed undue influence: where there is (a) a relationship of trust and confidence and (b) the transaction in question calls for an explanation.

   Should there be a relationship of trust and confidence as well as such a transaction then there is a presumption of influence, meaning that the burden of proof switches and the person defending the claim must disprove undue influence. The types of relationship giving rise to ‘trust of confidence’ include parents and guardians, medical advisers, solicitors, religious advisers and fiancées. Notably, the relationship of husband and wife does not fall within this category, as established in Yerkey v Jones. The example relationships which are noted above to have been found to be ones of ‘trust and confidence’ are not an exhaustive list and qualifying relationships can be found on the facts of the case where there is actual evidence of ‘trust and confidence’, particularly in relation to financial affairs.

The position following Etridge

Although the Lord Justice’s in Etridge left the scope of presumed undue influence relatively wide, it has become clear in subsequent cases that the threshold to establish this type of undue influence is relatively high and requires proof that the testator had been coerced, rather than merely persuaded.

In Scott v Hubbard [2011] the testator made a Will appointing Mrs Kruk, who had previously worked as a cleaner for the testator, as his sole beneficiary. The Claimants were the Executors of the Will and beneficiaries under the testator’s previous Will who brought proceedings on the basis that Mrs Kruk unduly influenced the testator to change his Will. The High Court determined that, although Mrs Kruk may have persuaded the testator to make a Will in her favour, this was not enough to prove undue influence; rather, to bring a successful claim of undue influence, the Claimants were required to prove ‘illegitimate coercion’ and ‘evidence of victimisation’.

The High Court reached a similar conclusion in Re Devillebichot [2013]. Here, the Claimant challenged the validity of her father’s Will under which she was left a legacy of £100,000 but the bulk of the estate passed to her siblings. Although the judge found evidence that the Claimant’s siblings had influenced the testator, it was determined that the level of influence was not enough to have overpowered the testator’s freedom. Therefore, the Claimant failed to prove a level of coercion or pressure that was enough to establish a successful claim of undue influence.

Recent Developments

Although there have been many cases over the years where a claim on the grounds of undue influence has been unsuccessful in challenging the validity of a Will, the extremely recent case of Naidoo v Barton [2023] is an example whereby the doctrine has been successfully applied to challenge a Will’s validity.

In 1998 Mr and Mrs Naidoo made mutual Wills appointing the Defendant as Executor and sole beneficiary of their estates on second death. Following Mr Naidoo’s death, in 2015, Mrs Naidoo made a new Will appointing the Claimant as Executor and sole beneficiary of her estate. The Claimant requested rescission of the 1998 Will on the grounds of mistake by Mrs Naidoo that a mutual Will would leave her free to change her Will (whereas, in fact, Mrs Naidoo was not free to change her Will after Mr Naidoo’s death as he could not consent to the change), and undue influence by the Defendant when Mr and Mrs Naidoo prepared the 1998 Wills.

The judge highlighted the following key events which had taken place surrounding and the 1998 Wills:-

1. The Defendant gave instructions for the mutual Wills. He could only have done so as a result of abusing Mr and Mrs Naidoo’s vulnerability and having influence on them.

2. There was no evidence that Mr and Mrs Naidoo received advice about mutual Wills to ensure they were entering into them of their own free will. In fact, the right to prevent the survivor from changing their Will was out of proportion and left “the rest of the family at [the Defendant’s] mercy.”

3. The Defendant was currently serving a 17-year prison sentence for dishonesty and fraud.

In giving judgment, HHJ Cadwallader determined that the Defendant had unduly influenced Mr and Mrs Naidoo in preparing the 1998 Wills. Therefore, the mutual Wills were to be set aside on the grounds of undue influence.

This is a developing area of law as demonstrated in a recent High Court case run by Gosschalks: Bird & Montgomery -v- Lantern Recovery LLP & Others [2021] EWHC 1379 (Ch). In Bird, the application of the presumption of undue influence was successfully applied to the relationship between an elderly but capable mother and her son who dominated her financial affairs. This was a case expanding on the relationships at risk of presumption of undue influence and the high bar to rebut the presumption where activated. As such the case is referenced in the textbook on Undue Influence “Duress, Undue Influence and Unconscionable Dealing” by Professor Nelson Enonchong.

Conclusion

Whilst the doctrine of undue influence has existed for over 200 years, it is clear that challenging the validity of a Will on the grounds of undue influence is heavily based on the facts in hand. Although a higher level of coercion is required over and above mere influence, the recent decision of Naidoo is an example of where influence can be deemed so extreme so as to have overpowered the testator’s freedom, resulting in a successful claim of undue influence.

Whether you are faced with defending a claim or considering bringing a claim of undue influence, the Contentious Probate team at Gosschalks will be happy to help.

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If you are interested to learn more about any of the topics covered in this blog, please get in touch with the author, Ellen Boote, today on 01482 324252 or via email: esb@gosschalks.co.uk

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