A man died leaving his four adult children surviving him.[i] One of the children sought to prove his last will and obtain probate of it, but the other three children (“the siblings”) objected to it.

One of the reasons the siblings objected to their sister obtaining probate of the deceased’s last Will was because they felt that their sister had unduly influenced the deceased into making it.

The siblings said that the deceased’s last will was the “product of an incessant and unrelenting campaign by the Plaintiff [the sister] to force the Deceased to change his Will in order to improve her own financial position at the expense of her siblings[…]”

Proving undue influence

If a will is made because of undue influence then it will not be valid.

To prove undue influence there must be coercion or an overbearing of the will. It must be shown that the influence was to such an extent that the will-maker (“testator”) was no longer acting freely.

Undue influence is more than just persuasion. Persuasion, as well as pressure and appeals to affection are permissible.

To be successful in a claim of undue influence it must be shown that:

  1. The person had power to unduly influence the testator;
  2. The power was exercised; and
  3. The will was made because of the exercise of that power.

In this matter, the sister tried to have the sibling’s claims of undue influence dismissed because of there being no real prospect of success.

The Court held that despite the evidence of the siblings that the sister pressured the deceased with claims about her financial position, job security, family health and her less favorable treatment by the deceased compared with her siblings, it did not amount to undue influence.

It could not be established that the sister’s actions went beyond permissible persuasion or pressure. The evidence did not show that her actions were ‘unrelenting, persistent and forceful’ or that the deceased’s will was a product of undue influence.

Despite the Court determining that the siblings’ challenge to the will on the grounds of undue influence had no real prospects of success, the Court held that the claim should not be disposed of and that it was in the interests of justice that the dispute be heard on its merits.

[i] Re Demediuk [2016] VSC 587