Undue influence – Wills – Hubbard v Scott  EWHC 2750
Although regularly claimed when the validity of a Will is disputed case law shows it is hard to prove undue influence in relation to Will making given there has to be actual undue influence – that is, coercion to be successful in that claim. The case of Hubbard v Scott  EWHC 2750 illustrates the fact that there is no presumption of undue influence when making a Will.
Mr Albert Wiseman (Albert) was a childless widower who had previously chosen to benefit under his Will the two daughters of a friend of his. Mrs Kruk started cleaning for him (she argued in 2006, the two claimant daughters said the summer of 2009) and the two of them got along very well.
The deceased decided to make a new Will in September 2009. The Will was prepared by a solicitor who saw Albert at a meeting together with Mrs Kruk and a friend of hers. Albert was happy and jovial and gave instructions to leave everything to Mrs Kruk. He even joked that he should marry her.
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Albert died in October 2009 and the claimants alleged that Mrs Kruk exerted influence over him to in effect coerce him into revoking the previous Will in their favour in order to benefit herself. There was no direct evidence of coercion and the court was asked to infer undue influence from circumstantial evidence.
Mrs Justice Proudman confirmed that there was no presumption of undue influence when making a Will and whilst there might be an argument for a higher court to remove the distinction between undue influence in relation to transactions made during lifetime and on death it was not for her to do so.
She found the evidence fell a long way short of what was necessary to establish coercion. Persuasion is not coercion as Carapeto v Good illustrated previously. It was necessary to demonstrate that Mrs Krok did not simply make appeals to him for money but so overbore his free will that he had no choice but to make the 2009 Will in her favour.
The only concrete evidence was that of the solicitor and that showed that Albert was happy and jolly when he made his Will and did not lack capacity or show signs of mental frailty; there was also no suggestion that Mrs Kruk took advantage of his physical frailty.
Albert had no dependents or anyone else he wished to leave his estate to – Mrs Kruk came into his life and he became fond of her – he was elderly and lonely and the claimants and their mother visited him less frequently. Why should he not choose to leave his estate to Mrs Kruk?
- Remember to consider undue influence separately from lack of testamentary capacity in cases where there is a significant change in testamentary dispositions from a previous Will or where unusual beneficiaries are chosen.
- Be cynical and suspicious when the person arranging the Will and involving you is a key beneficiary but equally do not interpret persuasion as coercion.
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