Contesting a will for undue influence
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Contesting a will for undue influence
Undue influence occurs when someone pressures or manipulates the person making a will, affecting the decisions made in that document. If you believe a will was created under undue influence, you may have grounds to challenge it. This guide explains what undue influence is, how to identify it, and what steps you can take.
What undue influence in a will means in Australia
Undue influence occurs when someone uses improper pressure or coercion to alter a person's decision about their will. Rather than making choices freely and independently, the testator (person making the will) may be manipulated or pressured by another person who stands to benefit from the changes.
In Australian law, undue influence is considered a serious challenge to a will's validity. It recognises that a will should reflect the genuine wishes of the person making it. If undue influence is present, the affected person's autonomy is compromised, and the document may not truly represent their intentions.
Undue influence differs from simple persuasion or advice. It involves exerting such strong influence that the testator loses their independent decision-making ability. This might include emotional manipulation, isolation from family members, threats, or taking advantage of someone who is elderly, ill, or vulnerable.
When someone brings an undue influence claim, they must establish that improper pressure was applied. The burden of proof typically sits with the person challenging the will, though Australian courts recognise that suspicious circumstances may shift this burden. For example, if someone very close to the testator drafts the will and is the main beneficiary, this may raise questions that require explanation.
Key points
Undue influence involves improper pressure or coercion affecting a person's will-making decisions
It is distinct from mere persuasion or reasonable advice
Courts examine the circumstances surrounding the will's creation
Cases involving coercion often focuses on suspicious circumstances and relationships
Professional evidence and witness testimony are commonly used in disputes
The testator's mental capacity and vulnerability at the time are relevant factors
Common situations where undue influence may arise
Questions about undue influence often emerge in specific circumstances. Understanding these situations may help you recognise potential concerns.
You might suspect undue influence has occurred if:
A carer or live-in family member becomes the main beneficiary despite a longstanding pattern of the estate passing elsewhere
An elderly or seriously ill person suddenly changes their will shortly after spending significant time with one particular person
Close family members were isolated from the testator during the period leading up to the will's creation
A beneficiary was closely involved in drafting the will or selecting the lawyer
Someone with financial difficulties or debt became unexpectedly favoured in the new will
The person who benefits was in a position of trust or authority over the testator
There are signs of emotional dependency or financial vulnerability in the testator's circumstances
When undue influence is suspected, disputes often become complex, costly, and emotionally difficult for families.
What to consider
Were there significant changes to the will close to the testator's death?
Did the testator have any diagnosed cognitive decline or health conditions at the time?
Was the testator isolated from their usual support network?
What was the relationship between the testator and the main beneficiary?
Are there written records, emails, or witness statements that describe the testator's state of mind?
Did the testator receive independent legal advice before signing the will?
How quickly did the changes occur, and what prompted them?
These factors may help determine whether an undue influence challenge is worth pursuing, or whether other grounds for challenging a will, such as lack of capacity, might be more relevant to your situation.
What you can do next and how LawConnect can help
If you believe an undue influence claim may be relevant to your situation, you may wish to:
Gather any documents relating to the will, including drafts, correspondence with lawyers, and the testator's medical records
Collect witness statements or notes from people who spent time with the testator and can describe their state of mind
Document the timeline of when the will was changed and what prompted the changes
Review the testator's previous wills to identify patterns and any significant departures
Take note of who had access to the testator and any signs of isolation from family members
Research the legal grounds for challenging a will in your state
Consider seeking preliminary guidance on whether your concerns have legal merit before committing to formal proceedings
How LawConnect can help
Contesting a will on the grounds of undue influence is a sensitive and technically complex matter. Many people need clarity about how to approach the process, what evidence matters, and whether they have realistic grounds to proceed.
LawConnect provides personalised legal information through our AI legal assistant. You can explore questions about undue influence, the evidence needed to support a claim, and the broader dispute resolution process. Our AI tool helps you understand general legal information and the range of options that may be available in your situation.
However, only a licensed lawyer can assess the specific facts of your case and provide legal advice tailored to your circumstances. If you decide to move forward with a challenge, we can connect you with experienced estate lawyers who specialise in will disputes and can advise you on the strength of your position, the likely costs, and the best path forward.
Starting with information often helps you make a more informed decision about whether to seek legal advice and what questions to ask a lawyer.
Not sure what to ask?
Try one of these. Get tailored guidance on contesting.
Undue Influence FAQs
Undue influence occurs when someone uses pressure, manipulation, or coercion to control what a person includes in their will. This may involve threats, emotional pressure, or isolating the person from family and friends. For a claim to succeed, it must be shown that the influence was so significant it changed what the person would have otherwise decided to include in their will.
Proving undue influence generally requires evidence that shows the person who benefited from the will had opportunity, motive, and the ability to influence the deceased. You may need to gather documents, witness statements, medical records, or communications that demonstrate suspicious circumstances. The strength of your case often depends on the specific facts and circumstances surrounding the will's creation.
If the will appears rational and was made by someone who had capacity, the person challenging the will must generally prove undue influence occurred. However, if certain suspicious circumstances exist, the burden may shift to the person defending the will to explain those circumstances. The exact burden depends on the evidence presented and the specific situation.