How can you identify undue influence?

Undue influence can cause significant stress, especially when a will is contested. How can you identify this and address it to prevent harm?

Undue influence is a common issue whenever a contract is disputed in courts of law. So common, in fact, that the NSW Supreme Court recently stated that “a solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases” (Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007).

When a will is contested, plaintiffs often allege that defendants have manipulated or otherwise taken advantage of the person drafting the will for their own benefit. While commonly alleged, it can be difficult to prove how can you identify when undue influence has taken place?

How to spot undue influence

There are many red flags which could indicate undue influence, especially among vulnerable Australians:

In theory, witness requirements when a will is written can prevent undue influence from occurring. But as the Victorian Law Reform Commission (VLRC) points out, this still allows for pressure and undue influence to be put on older or more susceptible will-makers. There is also express undue influence, where the pressure is clear; and presumed undue influence, where the pressure is implied from a specific relationship.

• A sudden drop in contact
• Sudden shifts towards dependence on one person (where they had previously been self-sufficient)
• An influencer begins intervening in personal relationships
• Meetings with financial planners or legal professionals occur without honouring witness requirements
• Changes to authority on bank accounts, powers of attorney or legal counsel

In theory, witness requirements when a will is written can prevent undue influence from occurring. But as the Victorian Law Reform Commission (VLRC) points out, this still allows for pressure and undue influence to be put on older or more susceptible will-makers. There is also express undue influence, where the pressure is clear; and presumed undue influence, where the pressure is implied from a specific relationship.

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