A common reason for dispute is where someone is left out of a Will or believes they should inherit a larger share or a specific asset.
That person may allege that there has been ‘undue influence‘ on the testator by some other person. Typically this situation arises where a child of an elderly parent is preferred to another child. This can be for a reason such as that he or she deserves a greater share of the estate by reason of the parent living with or being cared for by that child.
Influence could be brought to bear to cut out of a Will a partner not protected by marriage or a civil partnership. There are cases where one child has given financial help such as a loan for parents to buy under the ‘Right to Buy’ scheme and then claimed entitlement to the house outright and to the exclusion of others. This overlooks the fact that any profit has derived in part from the discount ‘earned’ by the parents paying rent for many years. If undue influence can be proved or the possibility is accepted by executors the provisions of the Will can be altered by agreement or Court Order.
Duress is very similar to undue influence but usually involves pressure to do something rather than just suggestion: in effect a more threatening form of behaviour.
In order to guard against allegations of undue influence or duress, we take steps to establish that the instructions we are given reflect the wishes of the maker of the Will. We may therefore ask a family member or friend accompanying the client to leave the room and will usually wish to ensure that the Will is signed in our presence with our staff as witnesses.