Learning Outcomes
After reading this article, you will be able to identify and explain how duress, undue influence, and mistake can affect the validity of wills and codicils. You will understand the legal definitions, the requirements for establishing each ground, and the practical consequences for will validity. You will also be able to apply these principles to SQE1-style scenarios and distinguish between legitimate persuasion, coercion, and error.
SQE1 Syllabus
For SQE1, you are required to understand how certain factors can invalidate a will or codicil. In your revision, focus on:
- the legal requirements for a valid will or codicil, including the need for free and informed testamentary intention
- how duress and undue influence can render a will or codicil invalid
- the distinction between undue influence and legitimate persuasion
- the effect of mistake on the validity of a will or codicil, and the court’s power to rectify mistakes
- the burden and standard of proof for challenging a will on these grounds
- how to apply these principles to practical scenarios and exam questions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What must be proved to establish that a will is invalid due to duress?
- How does the law distinguish between undue influence and legitimate persuasion in the context of wills?
- What is the effect of a mistake in the drafting or execution of a will, and how can it be remedied?
- Who bears the burden of proof when alleging undue influence in a will dispute?
Introduction
A valid will or codicil must reflect the true, voluntary intentions of the testator. However, a will may be challenged and set aside if it was made as a result of duress, undue influence, or mistake. These factors undermine the requirement that a will is the free act of the testator. For SQE1, you must be able to identify when these issues arise, understand the legal tests for each, and apply them to practical scenarios.
Key Term: will A legal document by which a person (the testator) sets out how their property is to be distributed after death.
Duress and Undue Influence
A will or codicil must be made freely. If the testator’s free will is overborne by threats, coercion, or manipulation, the will may be invalid.
Duress
Duress involves unlawful threats or pressure that force the testator to make a will or codicil against their wishes. The pressure must be so severe that it destroys the testator’s free agency.
Key Term: duress Unlawful threats or coercion that force a person to act against their true wishes.
Undue Influence
Undue influence is subtler than duress. It occurs when a person uses their position of trust or authority to overpower the testator’s freedom of decision, resulting in a will that does not reflect the testator’s true intentions. The influence must amount to coercion, not just persuasion.
Key Term: undue influence Improper pressure or manipulation that overcomes the testator’s free will, resulting in a will that reflects the influencer’s wishes rather than the testator’s.
Key Term: coercion Pressure so strong that it overcomes the testator’s volition, leaving them no real choice.
Distinguishing Persuasion from Undue Influence
Not all influence is undue. It is common and lawful for relatives or friends to try to persuade a testator to benefit them. The law only intervenes where the influence is so strong that the testator’s independent judgment is overpowered.
Burden and Standard of Proof
The person alleging duress or undue influence must prove it. There is no presumption of undue influence in wills (unlike lifetime gifts). The standard is the balance of probabilities, but the courts require clear and convincing evidence.
Worked Example 1.1
Scenario:
An elderly woman changes her will to leave her house to her carer, who has recently become her main companion. Her children allege the carer forced her to make the change by threatening to withdraw care.
Answer:
If the children can prove the carer made threats that overbore the testator’s free will (duress), or manipulated her to the point of coercion (undue influence), the will may be set aside. However, if the carer merely persuaded her, without improper pressure, the will is likely to be valid.
Exam Warning
Allegations of undue influence are serious and difficult to prove. The courts require strong evidence of coercion, not just evidence that the will is unexpected or that the influencer had the opportunity to exert pressure.
Mistake
A will or codicil may also be invalid or require correction if it contains a mistake. Mistakes can arise in the drafting, execution, or understanding of the will.
Types of Mistake
- Mistake in execution: The testator signs the wrong document or is unaware they are signing a will.
- Mistake in content: The will does not reflect the testator’s instructions due to a drafting error.
- Mistake in legal effect: The testator misunderstands the effect of the words used.
Key Term: mistake (in wills) An error in the drafting, execution, or understanding of a will or codicil that causes it not to reflect the testator’s true intentions.
Rectification of Mistakes
If a will fails to carry out the testator’s intentions due to a clerical error or a failure to understand instructions, the court may order rectification under s.20 Administration of Justice Act 1982.
Key Term: rectification The court’s power to correct a will so that it reflects the testator’s true intentions, where the will fails due to a clerical error or misunderstanding.
Worked Example 1.2
Scenario:
A testator instructs their solicitor to leave £10,000 to their niece, but the will as drafted leaves £1,000. The testator signs the will, not noticing the error.
Answer:
If the court is satisfied that the error was clerical or due to a misunderstanding of instructions, it may rectify the will to give effect to the testator’s true intention (£10,000 to the niece).
Mistake in Execution
If the testator signs a document believing it is something else, or does not know they are signing a will, the will is invalid for lack of knowledge and approval.
Revision Tip
When reviewing a will, always check that the testator has read and approved the contents, and that the will accurately records their instructions.
Practical Application and Evidence
When a will is challenged on the grounds of duress, undue influence, or mistake, the court will consider all the circumstances, including:
- The testator’s vulnerability (age, illness, dependence)
- The relationship between the testator and the alleged influencer
- The presence of suspicious circumstances (unexpected changes, exclusion of close family, involvement of a beneficiary in preparation)
- The evidence of the solicitor or other witnesses to the will’s execution
The court will not set aside a will simply because it is unexpected or unfair. There must be clear evidence that the testator’s free will was overborne or that the will does not reflect their true intentions due to mistake.
Worked Example 1.3
Scenario:
A testator leaves their entire estate to a new friend, excluding their children, after a period of declining health. The children allege undue influence.
Answer:
Unless the children can prove that the friend exerted improper pressure amounting to coercion, the will is likely to be upheld. Suspicious circumstances alone are not enough; the court requires evidence of actual undue influence.
Key Point Checklist
This article has covered the following key knowledge points:
- Duress and undue influence can render a will or codicil invalid if the testator’s free will is overborne.
- Undue influence requires proof of coercion, not just persuasion or opportunity.
- There is no presumption of undue influence in wills; the burden of proof is on the challenger.
- Mistake can affect the validity of a will or codicil if it causes the document not to reflect the testator’s true intentions.
- The court may rectify a will under s.20 Administration of Justice Act 1982 for clerical errors or misunderstanding of instructions.
- The court considers all the circumstances and requires clear evidence before setting aside a will for duress, undue influence, or mistake.
Key Terms and Concepts
- will
- duress
- undue influence
- coercion
- mistake (in wills)
- rectification
