The burden of proof in proving that a will was executed under unlawful pressure (“undue influence”) falls on the person trying to prove it. Naturally as the will-maker will no longer be alive at the time you want to prove this, this can be a challenging task.
Sometimes a starting point for proving undue influence is ascertaining whether the will-maker had testamentary capacity at the time the will was made. The tests for testamentary capacity is set out in an old English case called Banks v Goodfellow.
That case sets out the will-maker must:
- understand the nature and effect of a will
- understand the nature and extent of their property
- comprehend and appreciate the claims to which they ought to give effect
- be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.
On one view the Banks v Goodfellow test is not a difficult test to satisfy.
Without proving a lack of testamentary capacity the task of proving undue influence is challenging. Mere pressure is not sufficient: “Pleas, persuasion and protestations” are legitimate. It must be proved that the mind of the will-maker was coerced. The free will of the will-maker must have been overborne, so that the person was coerced into doing something they did not wish to do (Craig v Lamoureux  AC 349 at 357).
Also, in probate law, unlike the equitable doctrine of undue influence, there is no presumption of undue influence based on the relationship between the will-maker and the person accused of exerting undue influence (Winter v Crichton (1991) 23 NSWLR 116, 121)
Sometimes poor behaviour by a solicitor can be used as evidence supporting a claim of undue influence. See Petrovski v Nasev; The Estate of Janakievska  NSWSC 1275 as a good example.
Contact us for more information.