"A word or two on undue influence"

Some refer to 4th May as "Star Wars Day" ("May the Fourth/Force Be with You").  While I am not particularly a fan of Star Wars, I really like the phrase.  (Note to fans: Though I am not a fan, I have nothing against Star Wars either; I just am unable to recount the names of all the characters in the middle of the night…. well, in the middle of the day either…)

This year's Star Wars Day was extra special, as it marked the start of a 3-day gathering of Meritas members here in London and (…. the sound of drums….) in our offices at Howard Kennedy. Meritas is a global alliance of independent, market-leading law firms. As one of its members, we hosted its first Annual Meeting outside of North America. 

Fair vs. unfair 

As part of the Meritas gathering, Liz Palmer, Simon Malkiel, John Annetts, Jessie Smith and I will be hosting a panel session for the Private Client Group of Meritas members (see our summary of that discussion here.  One of the issues we discussed was the fairness or unfairness of various legal concepts we use in our area of expertise.  

Preparing for this session, I thought about the concept of "undue influence" in the fair vs unfair context.  Protection of those who are vulnerable from the malign influence of liars and fraudsters should be one of the primary roles of the law.  Yet the look of disappointment on the faces of my clients when I tell them how difficult it is to succeed with a claim based on an argument of undue influence really sticks with me. Is it because the law is unfair?  

Undue influence in English law 

We have two types of undue influence in English law: presumed and actual.  A presumption of undue influence exists where a transaction, which of its size or nature calls for an explanation, takes place between two people in a relationship of trust and confidence.  To oversimplify, such a relationship will be found to exist between people who are in a relationship of dependency.  Among other, these would include a husband and wife, an adviser and their client, or a carer and their patient.  For example, if a client gifts their  house to their adviser, undue influence on the part of the adviser would be presumed.  The adviser would have the burden of proving, on the balance of probabilities, that their client made the generous gift to them free from any influence. 

However, a presumption of undue influence does not exist where there is no relationship of trust and confidence, nor in relation to transactions that take effect after death (e.g. testamentary dispositions).  In those situations, we are looking for a finding of actual influence, and, by definition, this is not easy.  Why?  This is because the law is not interested in whether the effect of a transaction is fair.  The donor of the gift or the testator is free to do with their wealth as they wish.  The relevant question is whether, when making the gift (in life or by will) the donor or testator acted from their own free will.   As this is a question of fact, assessed subjectively, often in relation to a person who has died, these cases are extremely difficult.

What is required to succeed 

The burden of proving actual influence rests with the person raising the allegation.  Whether undue influence took place will be a question of fact, not an assumption.  As the judgment in Edwards v Edwards [2007] WTLR 1387 tells us (and I paraphrase):  it is not sufficient to convince [the court] that the facts are consistent with a hypothesis of undue influence.  One must prove that they are inconsistent with any other hypothesis. 

In the context of a post-death disposition, "influence" has to be equivalent to fraud or coercion.  Evidence of persuasion or appeals to ties of affection or for pity of future destitution will not be sufficient to succeed with an allegation of undue influence.  For that, the person alleging undue influence must convince the court that the testator's free judgment or wishes were overborne.  Clearly, the physical and mental state of the person being influenced is of principal relevance. It will be much easier to influence an ill, or otherwise weakened person than one in full health.  However, the task of proving that the testator prepared their will in a particular way due to overbearing persuasion rather than according to their own wishes is not an easy one. 

Positive news – Whittle v Whittle 

The occasions on which a finding of undue influence is made by the court are rare.   However, less than a month ago, District Judge Woodburn found a will of Mr Gerald Whittle to be invalid on the ground of undue influence. 

Mr Whittle died on 7 December 2016 at the age of 92.  Mr Whittle's wife had died 11 years earlier, so at the time of his death, Mr Whittle's closest family consisted of his two adult children: David and Sonia.

Mr Whittle executed his first and only Will in mid-November 2016.  He left his collection of cars and the contents of a shed and garage to David, provided that he cleared the shed and the garage.  The cost of doing so would have outweighed the value of the gift.  Mr Whittle gave the rest of his wealth to Sonia and her partner in equal shares.

The Will explained that Mr Whittle's gift to David was smaller (or effectively non-existent given the costs involved) due to their estrangement.  This was undermined by the fact that, until August 2016, David was listed in Mr Whittle's medical records as his "next of kin".    

David challenged the validity of his father's Will on the basis of undue influence, alleging that the Will was made as a result of Sonia poisoning their father's mind against him.  Using strong language, Sonia accused David of theft and of being a "pimp living off immoral earnings of a prostitute".   She convinced her father that David had stolen money from his mother-in-law (prompting her to remove her daughter and David from her Will) and that he was a violent man who assaulted women.  She also tried to convince Gerald that David broke into his father's house while he was in hospital to go through his papers looking for pin numbers and bank account details, thus prompting a report to the police.  She made the allegations, in front of her father who was by then in an increasingly frail condition, as well as in the presence of a trainee legal executive attending the house to take Mr Whittle's instructions for his will.

Having made the various allegations about David in front of Gerald and anyone else who cared to listen (including the Legal Executive who prepared Gerald's Will), Sonia did not attend court, nor did she provide any evidence to corroborate her attacks on David's character when the case concerning Mr Whittle's Will was heard by the court; nothing to show that what she was saying was true or even as to why she may have believed it to be true.  Meanwhile, David provided evidence that his father was upset by the allegations and that, shortly before he died, he had questioned David about them.  In response, David had protested that they were all untrue.

Ultimately, the court determined that Gerald's Will was invalid as a product of undue influence, rather than of a desire by a father to favour his daughter.  In my view, this undoubtedly unusual result, may be attributed to a significant degree to Sonia's exceptionally despicable behaviour.  The fact that the case was determined on evidence from David only, seems to have been a substantial contributing factor to David's success.

Are we alone in our fair vs unfair dilemma? 

The state of play with regard to the success or otherwise of undue influence claims does not appear to differ significantly in United States, certainly in New York, from where many of our Meritas colleagues joined us in London for our Star Wars Day this year. 

In their April newsletter, our partners at Goulston & Storrs (practicing in Massachusetts and New York) reported on a decision of the New York's highest court (Matter of Kotsones, 37 N.Y.3d 1154 (2022)).  In this case, New York's Appellate Division affirmed an earlier decision of the court that a child's position of trust with a parent is not sufficient to establish undue influence.  A parent, acting in accordance with their own will, can treat their own children differently, even unfairly so.

If you would like any more information in relation to the points raised in this note, or to discuss a potential will or trust dispute, please contact Monika Byrska or another member of our Trusts and Estates Disputes team.