PT-2022-000261 - [2025] EWHC 2060 (Ch)

The law was summarised by Lewison J (as he then was) in Re Edwards [2007] EWHC 1119 (Ch) at para. 47 as follows (so far as relevant):

“There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:

i)

In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii)

Whether undue influence has procured the execution of a will is therefore a question of fact;

iii)

The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

iv)

In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud;

v)

Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense;

vi)

The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A “drip drip” approach may be highly effective in sapping the will;

…

ix)

The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”

However, as Mann J said in Schrader v Schrader [2013] EWHC 466 (Ch) [2013] W.T.L.R. 701:

“It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. The present case has those characteristics. The allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger, on normal principles.”