12 October 2023 by Grace Gannon

Will challenges post-Covid: why is there a spike in undue influence claims?

Whilst there are limited grounds in the UK to challenge a Will that has been validly executed, ‘undue influence’ is one of them. Claims alleging undue influence have been increasing rapidly post-Covid.

Proving undue influence claims is complex and notoriously difficult. However, the two recent successful cases of Rea v Rea and Jones v Jones have prompted many to wonder if these claims are now easier to bring.

In a probate context, it may be found that there was undue influence where the writer of the Will, known as the testator, was coerced or manipulated into making the Will. This can include with physical force but, more commonly, involves mental pressure and coercion.

Unlike lifetime transactions, there is no presumption of undue influence in respect of a Will.

Crucially, when challenging a Will on the grounds of undue influence, it must be proven, with evidence, that the testator was coerced into making the Will.

The judgment in Rea v Rea observed that the standard of proof is for the claimant to persuade the court that undue influence is the only possible explanation for the new Will. Evidence of the testator’s mental and physical health at the time of signing the Will is highly relevant.

So why is there a spike in undue influence claims? Arguably, there is a direct correlation between the impact of lockdown implementations arising out of the Covid pandemic and undue influence claims.

You can easily imagine scenarios where, during lockdown, an elderly or unwell testator was heavily reliant on a primary caregiver to such an extent that they could exert pressure on them to change their Will. Coupled with the isolation from other family members and friends, for so many vulnerable people, this made them prime victims of undue influence.

The extension of legislation on the video witnessing of Wills until 2024 has arguably also increased the scope for abuse of elderly and vulnerable testators.

Now more than ever, extra caution should be given to the elderly and vulnerable with regard to financial and capacity concerns.

If you are concerned about a vulnerable relative or friend – perhaps you are aware of undue influence taking place – or require general advice, our Disputed Wills and Trusts team can provide assistance and advice at any stage.

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