Coercion and Undue Influence: the impact on will makers
When it comes to elderly will makers, the first question is one of capacity, whether they are able to form a proper intention and completely understand the consequences of their wishes.
The secondary question once it is shown that an elder has capacity, is whether they have had any outside influence as to making their decision, and whether they have been coerced into making that decision through threats or reliance on another.
One of the reasons for this being that older people, while still having capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing.
When does influencing a will maker’s decisions become undue influence or coercion?
The general principle is that the will maker must be overborne to the extent that they did not intend or desire to make their will in that fashion and was coerced into making such a will in the first place.
It is suggested that the coercion must be pressure that “overpowers the volition of the will maker”, which is differentiated from “mere persuasion” or “appeals to ties of affection” or “pity for future destitution”, all of which may appear to be legitimate.
Social pressure by itself may not amount to undue influence. It seems to be a high bar to prove undue influence. Yet pressure which causes the will maker to “succumb for the sake of a quiet life” if carried on to the extent that “it overbears the will maker’s free judgment” may in some circumstances be regarded as coercion.
The circumstances of the will maker may be relevant, what may not constitute undue influence regarding a person with a strong will and ordinary fortitude may be seen as undue influence in the case of a more susceptible individual.
More Information
If you wish to obtain further information, advice or assistance in updating your Will, please contact one of our Will Lawyers in our Estate Planning team at Matthews Folbigg on 9635 7966, email us at estates@matthewsfolbigg.com.au or through the website www.matthewsfolbigg.com.au
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law. Liability limited by a scheme approved under Professional Standards Legislation
