Probate Questions:
We are not solicitors, so all we can give is general guidance, and refer you to a professional for a free initial chat if you wish, so please search the site for an answer before emailing your probate question to us. If it is a simple question of general interest, we’ll try to answer it – though you must bear in mind that we can’t give advice, for that you need to see a specialist solicitor, but we can hopefully point you in the right direction. But we can certainly put you in touch with a suitable professional, should you wish it.
Probate Question: Undue Influence
My Dads “girl friend” has taken over looking after my Dad and she has taken him down to a solicitor and got me taken out of the Will. I can’t look after my Dad as I live over 100 miles away and have young children, but she’s twisted it to make it seem that I don’t care. She makes it impossible for me to see my Dad. It has to be undue influence as I think you call it.A friend has suggested that I use a “caveat” to prevent her getting away with it. Can I do this now?
Probate Answer.
A caveat may be the right tool in these circumstances, but you cannot register one with the local (to your Dad) Probate Registry until he has actually died. That said, it is a bit like the difference between politely raising a concern and using a battering ram. Please use the enquiry form on the Will Dispute page, and we will ask a professional to chat things through with you.You will need to put together a strong case to demonstrate undue influence, so spend some time writing down what has happened, with dates and times where possible, certainly from now on. Continue your efforts to see your Dad.Once he has died, ask to see a copy of the Will. If you are refused a copy, that should raise concerns and at this stage you could consider entering a caveat. You don’t have a RIGHT to see the Will until it has been probated, but by this time it is a little late!Let’s hope that your fears are groundless and that the Will will in fact be fair and reasonable.For more information on Caveats and undue influence click the link.In England and Wales, undue influence refers to a situation where someone exerts pressure or manipulates another person to draft or modify their will in a way that benefits the influencer, often at the expense of the testator’s true intentions. Undue influence can undermine the freedom of the testator to make decisions about their estate, potentially leading to an unfair distribution of assets upon their death.To establish undue influence in the context of a will, the following elements must generally be demonstrated:
- Influence: There must be evidence of influence exerted on the testator by another individual. This influence can be either direct or indirect, but it must be shown that the testator was subject to the control or domination of the influencer.
- Improper or Unfair Influence: The influence exerted must be deemed improper or unfair. It should go beyond mere persuasion and involve coercion, manipulation, or pressure that overpowers the testator’s free will.
- Resulting Effect: It must be established that the undue influence had a significant impact on the testator’s decision-making process, leading them to make provisions in the will that they would not have made if not for the undue influence.
If a will is successfully challenged on the grounds of undue influence, it may be declared invalid or partially invalid by the court. The court will then look to previous valid wills or intestacy laws to determine the distribution of the deceased person’s estate.It’s important to note that establishing undue influence can be challenging, as it often relies on circumstantial evidence and requires proving the mental and emotional state of the deceased person at the time the will was made. If you suspect undue influence in the creation of a will, it is advisable to seek legal advice from a solicitor who specializes in probate and estate disputes – please use the form.