Challenging a will based on undue influence, in Queensland

A disappointed beneficiary under a will may claim that there has been undue influence upon the testator as a ground to challenge the will.

WHAT IS UNDUE INFLUENCE?

Undue influence is the exploitation of a relationship of influence. In relation to Wills and Estates, it involves a person exercising persuasion, pressure, or coercion to ensure they are beneficiaries in a testator's Will, or that the testator makes provisions for them at the detriment of others. To prove undue influence, it is vital to evidence that "pressure of whatever character was exercised to overpower the volition" (Hall v Hall (1868)), in other words, pressure unduly exercised that overpowered the testator's free will to make their own decisions. The test has generally been viewed as: "there is no undue influence unless the testator, if he could speak his wishes, would say "this is not my wish, but I must do it"".

THE SUCCESSION ACT-S21

Under section 21 of the Succession Act 1981 (QLD) ("The Act"), a Will may be revoked if a testator is proven not to have testamentary capacity, at the time of executing their Will. The law presumes that a testator has testamentary capacity, so the onus falls on any applicant wishing to bring a claim to prove that the testator did not have testamentary capacity at the time of executing their Will. The court will consider any evidence of:

1. The testator's lack of testamentary capacity (for example, evidence of symptoms of dementia);
2. The likelihood of the testator regaining or acquiring testamentary capacity;
3. The testator's true wishes, including any Will previously made;
4. Any gift for a charitable or other purpose that the testator might reasonably be expected to give; and
5. Any person for whom the testator might reasonably be expected to make provisions for in their Will

(s 23 of the Act).

It is interesting to note that the Act does not expressly refer to undue influence. Instead, undue influence has historically risen from the court of equity and has its principals founded in Australian common law.

Undue influence is generally brought as an alternative or collateral claim to a dispute of testamentary capacity. Undue influence cannot be presumed and must be proven by the applicant, on the balance of probabilities, that there has been such undue pressure on the testator that the will can be said to be "the product of the conduct of pressure" as supposed to the testator's own intentions (Parfitt v Lawless). This is unless an exception applies.

COMMON LAW APPROACH TO UNDUE INFLUENCE

The approach of the courts, in determining a claim of undue influence, is to decide whether "the circumstances raise a more probable inference in favor of what is alleged than not, after the evidence on the question has been evaluated as a whole" (Nicholson v Knaggs (2009)). A focus is placed on the concept of "influence." Influence moves from being ordinary to undue at the point where it can no longer be said that in making the testamentary instrument, the testator exercised their own free, independent, and voluntary will.

Courts will focus on the effect of the influence, rather than the means of the influence. This means that the effect of influence can be from a chain of events or a single event, an individual's independent conduct or a joint group conduct. Most importantly, the conduct does not need to be intentional. Mens Rea, a concept common in criminal law, is not applicable to the principal of undue influence in Queensland Succession laws. However, a person found to have inflicted undue influence on a testator in the terms of their will is likely to also be found to have intentionally brought about a desired outcome.

HIGH BAR FOR PROVING UNDUE INFLUENCE

Due to the onus and burden of proof that falls onto applicants, it is very difficult to successfully prove undue influence.

In the Queensland case of Birt v Public Trustee of Queensland [2013], the deceased died in 2010 and was survived by her three children; Dale Eliza Birt ("Dale"), Deborah Patricia Brooks ("Deborah"), and William John Brooks ("William"). Her Will dated 2004 appointed The Public Trustee as her sole executor and trustee, and left the whole of her estate to her son William.

An application was brought by Dale and Deborah on two grounds; firstly, that the deceased lacked testamentary capacity at the time of executing her Will and secondly, that her Will was the product of undue influence by William over the deceased. The deceased had a former will, executed in 1990, which the applicants argued reflected her true intentions.

While the Court was satisfied that the deceased's lacked testamentary capacity in light of her diagnosed dementia, the Court was not satisfied that William had exercised undue influence over the deceased to convince her to change her Will and leave her entire estate to him.

The applicants were unsuccessful in their claim of undue influence. The court reflected "there is no doubt that it is for the party making the allegation of undue influence to demonstrate on the balance of probabilities that there has been such undue pressure...that the will can be said to have been the product of this conduct. I am simply not satisfied that this onus has been satisfied."

Applicants generally face the issue of limited evidence when trying to satisfy their onus of proof.

However, there is an exception to the presumption, which we will consider below.

A SUCCESSFUL CLAIM FOR UNDUE INFLUENCE

In the recent Queensland case of Wylie v Wylie [2021], the applicants were able to successfully argue undue influence. The deceased here had three surviving children; Wendy Steven and Yvette. An application was brought by Wendy and Steven that there was undue influence by Yvette on the deceased.

In this case, Yvette arrived in Queensland, from South Australia, with her daughter around one year before the deceased's death and moved in with the deceased. Within six months from her arrival, the deceased executed an Enduring Power of Attorney appointing Yvette as his attorney for personal and health matters. Two months following the executions of his Power of Attorney, the deceased signed an agreement to transfer half of his interest in his real property at Maryborough to Yvette as joint tenants, which prevented the property from forming part of his estate pool and being subject to the laws of succession (only properties owned solely or as tenants in common are subject to succession). A few days later, the deceased executed his Will that left $10,000 to Wendy, $5,000 to Steven, $20,000 to a friend and the remaining estate to Yvette along with the sum of $10,000 to care for his animals.

There is a presumption under section 87 of the Power of Attorney Act 1988 (QLD) that in any transaction between the principal and their attorney, the attorney induced the principal to enter the transaction via undue influence. As Yvette was the deceased's attorney at the time of the deceased executing his Will, she had the onus of rebutting the presumption and prove that she did not take advantage of the deceased, but that his gift was the independent and well-understood act of someone in a position to exercise free judgment, based on information (Birch v Birch).

In this case, Yvette argued that the deceased received independent legal advice and always had clear testamentary capacity. However, the court was not satisfied that the defendant had done enough to rebut the presumption. The court considered the following facts relevant:

• the defendant was always present during the deceased's discussions with the solicitor
• the clear series of events that occurred, following the defendant's arrival in Queensland, from Yvette moving in with the deceased, to the deceased executing his Power of Attorney, transfer of interest in his property and Will.
• the defendant had isolated the deceased from other family members and encouraged him to think poorly of his other children.

In considering these matters, the applicant's claim for undue influence was successful.

CONCLUSION

When the standard onus of proof on applicants to prove undue influence on the balance of probabilities is shifted, the high bar to prove undue influence is lowered. Applicants may find that they are much more likely to be successful in challenging a Will in Queensland on the grounds of Undue Influence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.