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Wills on the basis of undue influence

There are certain limited grounds upon which the validity of a Will can be challenged after the death of a Testator .

One of those grounds relates to a situation where a person making a Will has been unduly influenced . There have been a number of cases before the Irish Courts in recent years where Plaintiff's have alleged that undue influence has been exercised over an elderly relative in the preparation and execution of their will. Such cases before the Court have generally involved the transfer of property.

Typically in cases where declarations are sought in relation to undue influence, the persons bringing the case will seek a declaration from the Court that the Will should properly be set aside, on the basis that undue influence was exercised, and therefore it is not a valid subsisting Will capable of being probated .

Example of a Case- Carroll v Carroll:
The matter was examined in detail by the Irish Supreme Court in the case of Carroll -v- Carroll.

In that case the Court found that there are two types of circumstances in which a finding of undue influence may be arrived at.

1. The first instance is where undue influence is expressly brought to bear upon a vulnerable would be Testator.
2. The second is an instance were the relationship between the person who benefited under the Will and the deceased elderly person was such as to raise a presumption of undue influence. In the latter circumstance the onus rests on the person who has received a substantial benefit to shift the presumption by proving that they did not actually exercise an undue influence.

The case cited above related to the transfer of a Public House and property.

In particular the Court will have reference to whether the bequest in the Will could be said to be improvident.

From the Carroll decision it appears that there are three factors which a Court will look at in assessing whether a transaction is improvident. These are

1. Whether one party is at a serious disadvantage relative to another.
2. Whether the transaction has occurred at a gross undervalue (this is not usually applicable in the context of a Will)
3. Whether the person making the Will has had the benefit of independent legal advice.

How to rebut the presumption of undue influence:
In order to rebut the presumption, that an undue influence was exercised, it is necessary for the person who receives the gift under the Will to prove that the execution of the Will involved the free exercise of the donors will.

It would appear that in circumstances where the relationship between the beneficiary under the Will, and the deceased person, is such as will give rise to a presumption, then proving that a Testator has in fact been unduly influenced, becomes more difficult.

Example of a Case Elliot v Stamp and Another:
In the case of Elliot (Suing by her Attorney David Elliot) -v- Stamp and Another, the Judgment of Mr. Justice Roderick Murphy in the High Court quotes from English Case Law requiring proof of coercion on the part of the person whom it is alleged has exercised undue influence.

The court had regard, in that decision, to evidence of weak mental capacity of the Testator. It would also appear that in that decision the Court had regard to the state of health of the now deceased person.

Conclusion:
Each case will undoubtedly be determined on its specific facts, and more particularly the relationship between the person making the Will, and the person who has ultimately benefited pursuant to the Will.

Seeking Private Client advice

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