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Undue influence vs. lack of capacity – Understanding the difference in Will disputes

When a loved one passes away, emotions run high, especially when their Will does not reflect what family members expected.

If there are concerns about how the Will was made, two common legal challenges arise: undue influence and lack of testamentary capacity.

Both can lead to a Will being declared invalid, but they are distinct legal arguments with different requirements of proof.

So, what is the difference, and how do you determine which applies in a dispute?

Undue influence – When pressure overrules free will

Undue influence occurs when a person is coerced or pressured into making a Will that does not reflect their true intentions.

It is not enough for someone to persuade a testator to include them in a Will, there must be improper pressure or manipulation that overrides the testator’s independent decision-making.

Key signs of undue influence include:

The testator suddenly changes their Will in a way that seems out of character
A dominant individual controls access to the testator or isolates them from others
A new Will benefits one person disproportionately, especially at the expense of previously named beneficiaries
The testator shows reluctance or discomfort when discussing their Will

Proving undue influence

Undue influence is difficult to prove because the burden of proof falls on the person challenging the Will.

The court requires clear and convincing evidence that pressure was exerted to the extent that the testator had no free choice in making their Will.

Lack of capacity – When a testator cannot make their own decisions

Lack of testamentary capacity, on the other hand, relates to whether the person making the Will had the mental ability to understand what they were doing.

This is assessed using the test from Banks v Goodfellow (1870), which states that a testator must:

Understand the nature and effect of making a Will
Know the extent of their property
Understand who might expect to inherit and why
Not be suffering from a disorder that affects their ability to make rational decisions

Common causes of lack of capacity disputes include:

Dementia or Alzheimer’s disease
Severe mental illness
Confusion due to medication or medical conditions
Cognitive impairment following a stroke

Proving lack of capacity

Unlike undue influence, if lack of capacity is raised, the burden of proof often shifts to the party seeking to uphold the Will.

Medical evidence, witness statements, and solicitor records from the time of drafting the Will are often key in these cases.

Which claim applies?

If a person was mentally sound but pressured into making a Will, undue influence may be the stronger claim.

However, if they lacked the mental ability to make informed decisions, a challenge based on lack of capacity is more appropriate.

In some cases, both claims can apply, such as where a vulnerable testator was both mentally impaired and manipulated by someone seeking financial gain.

If you believe a loved one’s Will was made under undue influence or when they lacked capacity, our team of civil dispute solicitors can help you and protect the legal rights of those involved. Speak to us today for further assistance.