Testamentary undue influence in Australia: should it be reformed?

Abstract

Testamentary undue influence is a doctrine distinct from the equitable doctrine of undue influence. The requirements to prove testamentary undue influence have caused academic and judicial criticism questioning whether the doctrine adequately safeguards the vulnerable testator. As the aged population increases, it is increasingly important to re-examine the level of protection afforded by the doctrine. The doctrine of testamentary undue influence should be modified to be closer in line with equitable undue influence in inter vivos transfers to enable succession law to promote more just outcomes that uphold the true intention of testators in contemporary Australia.

INTRODUCTION

This article explores the differences in the interpretation of undue influence between probate law and the law of equity. It is argued that the traditional standard of proof for undue influence in probate should be revised in line with the modified succession law of British Columbia, Canada. Freedom to dispose of property after death in the way an individual chooses has been recognised for centuries under English common law.¹ This freedom has been limited in Australia only by family provision legislation that developed in the twentieth century.² In New South Wales, family provision was previously governed by the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). It was then replaced by the Family Provision Act 1982 (NSW). Finally, family provision was codified under the Succession Act 2006 (NSW), as a result of the enactment of the Succession Amendment (Family Provision) Act 2008 (NSW).

Historically, a number of safeguards have developed to protect testamentary freedom that have been aimed to ensure that the will reflects the true wishes of the testator.³ In the common law tradition, testamentary undue influence in the execution of wills is generally harder to prove than equitable undue influence in disputes involving the inter vivos transfer of property in the law of obligations.⁴ This raises the question of whether the principle is an adequate safeguard of the true wishes of the testator.⁵ In particular, there has been criticism of the inadequacies of the present law relating to challenges to wills made by frail testators.⁶ In Australia, it has been suggested that the failure to apply the equitable principles of undue influence to testamentary gifts ‘permits, if not encourages, pressure’ to be placed upon vulnerable testators.⁷ This sentiment has been expressed by Ipp JA of the New South Wales Court of Appeal:

There has been much academic criticism in recent times of the law relating to challenges to wills made by old and frail testators … The nub of the criticism is that the law does not provide adequate protection to those affected by a vulnerable testator who is coerced or tricked into making a will.⁸

An increase in life expectancy has led to significant growth in the number of elderly people in the population.⁹ This is further projected to increase with an estimated rise in the median age from 38.5 years in 2022 to between 43.8 and 47.6 years in 2071.¹⁰ The elderly have more assets and personal wealth than ever before.¹¹ The ageing population will give rise to an increase in the number of Australians living with a physical or mental disability or decline.¹² The Australian Institute of Health and Welfare has reported that there were 401,300 people in 2022 living with dementia in Australia, which is projected to more than double to 849,300 people by 2058.¹³ These statistics emphasise the need to re-evaluate the effectiveness and relevance of legal protections of the elderly from undue influence in the making of wills and inter vivos gifts to ensure that equitable principles remain relevant safeguards in the protection of testators.

FORMAL REQUIREMENTS FOR A VALID WILL IN AUSTRALIA

Succession law is state based in Australia, but the formal requirements are basically the same in substance. The focus will be on New South Wales, as the most populous state in Australia. A testator must possess the requisite testamentary capacity to have a valid will.¹⁴ A will is a legal instrument that outlines the intention of the testator in relation to the disposition of property which takes effect after his or her death. Certain formal legislative requirements must be met to ensure the will is valid before any discussion as to whether it should be set aside on any ground, including undue influence, can take place.¹⁵ The testator must be of age of majority (i.e. 18 years old and above), possess the necessary mental capacity, and know and approve of the contents of the will.¹⁶ According to legislation the will must be in writing, it must be executed by the testator or by another person in the presence of, and at the direction of the testator in the presence of two or more independent adult witnesses.¹⁷ Although there is no legislative requirement to do so, a will should be dated to avoid suspicion about the circumstances in which it was signed.¹⁸ Knowledge and approval of the contents of a will may be presumed where a capable testator executes a will in accordance with the formalities.¹⁹ For the purposes of this analysis, it will be presumed that all formal requirements of a will are met in the discussion of undue influence presented in this article.

THE EQUITABLE DOCTRINE OF UNDUE INFLUENCE IN INTER VIVOS TRANSFERS

From the inception of equity in the twelfth century, the Court of Chancery has had the jurisdiction to grant relief against conduct, which although not amounting to fraud actionable at common law is nevertheless classified in equity as equitable fraud. The Court of Chancery originated in the Norman curia regis that was maintained by the early rulers of England after 1066.²⁰ Its jurisdiction was virtually unlimited, with respect to executive, judicial and legislative functions.²¹ Chancery evolved the principles of equity to deal with verbal contracts, matters of land law and trusts cases.²² Common law fraud was often referred to as the intention to deceive or reckless indifference to underlying truth, which was used to denote any breach of equitable principles.²³ Courts have found it difficult to define the variety of actions of fraud. Fraud is said for example to occur where a testator executes a will without reading it and the document has had words inserted in it without the testator’s knowledge. Fraud will be determined when the will is vitiated by reason of fraud perpetrated upon the testator. The onus of establishing that the will was procured by fraud lies on the person alleging the fraud.²⁴ An effect of this has been the difficulty faced by modern courts in defining the variety of actions constituting equitable fraud.²⁵  Nocton v Lord Ashburton established that the equitable concept of fraud is much broader than common law fraud and may comprise actions which do not constitute fraud at common law.²⁶ Common law fraud is a fundamentally different concept from the doctrine of undue influence.²⁷ Undue influence is a doctrine of equity pursuant to which a court sets aside a transaction, which has been unconscionably procured as a consequence of the relationship between the parties.²⁸ It occurs when a person in a position of influence over another improperly uses that position for the stronger party’s benefit (or the benefit of another), so that the acts of the subordinate or weaker party are not free and voluntary.²⁹ A further distinction between the doctrine of undue influence and other areas of fraud was outlined in the judgment of Deane J in Commercial Bank of Australia Ltd v Amadio:

Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party…Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.³⁰

The equitable jurisdiction is only concerned with inter vivos transactions. Any exercise of such influence upon testators was historically the exclusive concern of the Ecclesiastical Courts.³¹ In Boyse v Rossborough, the House of Lords outlined that it is ‘not competent to a court of equity to declare the will void…No such jurisdiction exists in a court of equity.’³² A court of equity could only be a court of construction in the interpretation of wills, whereas the probate of wills was a separate legal question concerning the validity of the execution of wills. The Court of Probate succeeded the Ecclesiastical Courts in England as the probate court before being merged into the Probate, Divorce and Admiralty Division of the High Court of Justice as a result of the Judicature Acts.³³

When challenging testamentary gifts on the ground of undue influence, the applicable law differs depending on whether the gift is made during a donor’s lifetime as an inter vivos transfer or as part of a legacy in the terms of a testamentary disposition.³⁴ In the eighteenth-century case of Morris v Burroughs, the concept of undue influence in a transaction where the apprehension of a parent unduly influencing a child to bestow a gift on the parent was so strong that the Court intervened.³⁵ By the nineteenth century, the concept of undue influence had become prominent in England in the context of both inter vivos transactions and wills.³⁶ Undue influence has been characterised as an example of equitable fraud that is concerned with the unconscionability that has been wrought on the victim. In Symons v Williams, the Court stated, ‘Undue influence is only one of the instances of fraud; and undue influence itself is manifested in a variety of ways…but still it is in all cases bottomed in fraud.’³⁷

The reception of English law in Australia officially came into effect with the enactment of the Australian Courts Act 1828 (Imp).³⁸ The Supreme Court of New South Wales was established in 1823 and probate was within the ecclesiastical jurisdiction of the Court.³⁹ This meant that the ecclesiastical jurisdiction of the Court was empowered to grant probate and letters of administration. The Supreme Court Act 1970 (NSW) belatedly fused the jurisdiction between law and equity in New South Wales, almost a century after the Judicature Acts were passed in the UK.

Equity developed the presumption of undue influence on the ground of public policy.⁴⁰ Lindley LJ applied the principle in setting aside a transaction for undue influence in Allcard v Skinner.⁴¹ The concept developed as a means of dealing with unfair agreements induced by improper means of persuasion.⁴² Lindley LJ states:

On the other hand, to protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws; and the equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual tyranny and with the infinite varieties of fraud.⁴³

Matthew Tyson postulates that the doctrine developed because of concerns that the evidentiary difficulty would impede any attempt to rescind a disposition vitiated by undue influence.⁴⁴ Courts of equity sought to protect individuals affected by disability against improper persuasion by others in positions of authority, control, trust, family relationship or those having the means and opportunity to exercise improper persuasion. Courts relied upon the prevailing standards of ethics as defined and applied in accordance with the maxims of equity.⁴⁵ This was used in condemning and dealing with the unfair gain of economic advantage by a stronger party.⁴⁶

Where a gift has been made inter vivos, relief will be provided pursuant to the principles of the equitable doctrine of undue influence when the alleged undue influence falls within one of the two categories of actual and presumed undue influence due to the relationship of the parties.⁴⁷ The first category, actual undue influence, requires proof of an overt use of influence.⁴⁸ Here the subordinate party must establish that a relationship of influence existed.⁴⁹ The second category, presumed undue influence, arises from the existence of a special relationship between the parties.⁵⁰ The categories of presumed undue influence is not closed, but specific relationships were outlined by Latham CJ in Johnson v Buttress, including parent and child; guardian and ward; solicitor and client; doctor and patient; and religious leader and devotee.⁵¹ In Lloyd’s Bank Ltd v Bundy, the features of a special relationship of influence were identified to include a reliance upon guidance and advice, awareness of the reliance by the dominant party, a benefit received by the adviser, and some element of confidentiality or trust in the relationship.⁵²

If a prima facie presumption of undue influence arises on the evidence, the subordinate party is entitled to a remedy, usually rescission of the disposition, unless the dominant party rebuts the presumption by proving that the transaction was entered into ‘after full, free and informed thought.’⁵³ The onus rests on the stronger party to rebut the presumption and to establish that the transaction was ‘the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of [the donee].’⁵⁴ Independent advice is a significant factor in evaluating a transaction.⁵⁵ The advice must be sufficient to arm the weaker party with the legal effects and options available and an understanding of what the transaction encompasses.⁵⁶

A HISTORY OF TESTAMENTARY UNDUE INFLUENCE IN AUSTRALIAN PROBATE

Testamentary undue influence originated in the Ecclesiastical Courts and was subsequently developed as a safeguard for protection against impropriety in the making of a will.⁵⁷ With the introduction of the New South Wales Act 1823 (Imp), the Supreme Court of New South Wales was invested with ‘ecclesiastical jurisdiction and authority.’⁵⁸ The Ecclesiastical Courts traditionally exercised jurisdiction to set aside wills according to a doctrine of ‘coercion’ or ‘compulsion,’ a jurisdiction which developed separately from the equitable doctrine of undue influence.⁵⁹ The Probate Act 1890 (NSW) merged this ecclesiastical jurisdiction into the probate jurisdiction of the Supreme Court of New South Wales with authority over the succession of all personal property. The Wills, Probate and Administration Act 1898 (NSW) replaced the Probate Act 1890 (NSW), which continued until the Succession Act 2006 (NSW) was introduced that covered all testamentary dispositions.

The term ‘undue influence’ in relation to testamentary dispositions was used by the Ecclesiastical Courts in Williams v Goude.⁶⁰ Sir John Nicholl said, ‘The influence to vitiate an act must amount to force and coercion destroying free agency…further there must be proof that the act was obtained by this coercion.’⁶¹ Prior to the nineteenth century, the Ecclesiastical Courts would refuse probate of a will made under ‘pressure, constraint, compulsion or coercion.’⁶² A starting point in understanding the applicability of testamentary undue influence is the House of Lords decision in Boyse v Rossborough.⁶³ The Court held that undue influence cannot be presumed from the facts of the case, but rather it must be proved directly.⁶⁴ The Court stated the law of undue influence in these terms:

Undue influence, in order to render a will void, must be an influence which influence which can justly be described, by a person looking at the matter judicially, to have caused the execution of a paper pretending to express a testator’s mind, but which really did not express his mind, but expressed something else, something which he did not really mean.⁶⁵

It is important to compare the standard of proof of testamentary undue influence with the standard in the equity jurisdiction to understand the difficulty imposed on claimants of the former. Normally circumstantial evidence is the only source from which an allegation of testamentary undue influence can be supported. It is interesting to note that the House of Lords did not use the words ‘coerced’ or ‘coercion’ in defining undue influence, but the subsequent authorities of Parfitt v Lawless,⁶⁶  Wingrove v Wingrove,⁶⁷ and Craig v Lamoureux enunciated ‘coercion’ as the threshold requirement and the definition of undue influence.⁶⁸ Undue influence nowadays is said to occur in the preparation of a will when a testator is subjected to coercion.⁶⁹ Coercion has a wide meaning and it is not confined to conduct involving the persuasion of an unwilling person by threat or force.⁷⁰ Coercion may exist where there is violence or confinement of the testator, a vulnerable person who has been pressured to dispose of his or her estate, and where the testator is fatigued and succumbs to influence in order to have peace.⁷¹ In regards to undue influence, Gino Dal Pont states, ‘Only actual coercion serves to invalidate a will.’⁷² The difficulty in proving such a claim is that undue influence must be seen as the only possible explanation for the existence of the document or bequest.⁷³

The doctrine of testamentary undue influence as applied in Australia in the nineteenth century was initially unsettled.⁷⁴ In early reported decisions it was not necessary to prove actual ‘coercive conduct’ on the part of the beneficiary or another party. Instead, the Courts considered the overall circumstances of the case including the susceptibility of the testator, the testator’s health and age at the time of making the will, the involvement of the beneficiary in the will-making process and the relationship of the beneficiary to the testator.⁷⁵ As the authorities developed, the Courts not only cited English authorities, but also generally followed them and their requirements of proof. The Courts became reluctant to find undue influence even in the form of coercive conduct and merely presenting evidence that may have suggested improper influence was no longer sufficient.⁷⁶ There have only been three known successful testamentary undue influence claims in New South Wales courts between 1869 and 2011.⁷⁷ Windeyer J in Revie v Druitt acknowledged ‘it is generally recognised that it is extremely difficult to prove undue influence.’⁷⁸

The first reported case of the successful application of testamentary undue influence in New South Wales was in the case of Buckley v Millar.⁷⁹ It was an appeal from the decision of Hargrave J who refused probate of the purported last will of W.B. Millar. The Court below held that the will had been executed with undue influence exercised over the deceased by the plaintiff Mrs Buckley. The will was executed in Sydney in April 1868 following instructions from Mr Millar to prepare a will in Mrs Buckley’s favour. Mrs Buckley remained present but took no part in the conversation, except that when the instrument was shown or read to her, she suggested the word ‘residing’ should be substituted for ‘living’ with Mr Millar.⁸⁰ To determine whether there was undue influence the Court looked to the whole of the evidence and attempted to determine the answer on the probabilities of the circumstances.⁸¹ The threshold test applied was that the degree of influence must be ‘such as to have destroyed volition on the man’s part; must have rendered powerless his better judgment.’⁸²  Thornber v Sheard was raised to reiterate the principle that undue influence will not be presumed from the mere fact of the relative positions of the parties to distinguish between the probate and the equitable doctrines.⁸³ Hargrave and Cheeke JJ found undue influence, but Stephen CJ dissented. Cheeke J stated that the circumstances in conjunction with the evidence of Mrs Buckley’s history, her conduct and connection with Mr Millar formed the basis of proof of undue influence.⁸⁴ As Santow J confirmed in Ridge v Rowden that ‘undue influence in probate is distinct from the equitable doctrine of undue influence.’⁸⁵

THE DOCTRINE OF TESTAMENTARY UNDUE INFLUENCE IN ANGLO-AUSTRALIAN LAW

A leading case in Australia is Winter v Crichton,⁸⁶ which has been quoted with approval on numerous occasions.⁸⁷ The authority proposes that what is needed for a claim of undue influence to be successful is evidence that the conduct of the person or persons alleged to be exerting pressure was such that it amounted to coercion so that it overbore the free will of the testator.⁸⁸ The issue of extending the equitable doctrine of undue influence to wills was raised in the New South Wales Court of Appeal case of Trustee for the Salvation Army (NSW) Property Trust v Becker.⁸⁹ There was strong evidence of coercion, but ultimately this was insufficient to overturn the will. Ipp JA said, ‘I would note that the equitable doctrine of undue influence does not apply to testamentary gifts.’⁹⁰ He concluded, ‘The nub of the criticism is that the law does not provide adequate protection to those affected by a vulnerable testator who is coerced or tricked into making a will.’⁹¹ In Tobin v Ezekiel; Estate of Lily Ezekiel,⁹² Brereton J did not consider that the testator’s will had been overborne, even though he accepted evidence that the testator’s son bullied and threatened her and that she was frightened of him.⁹³ In contrast in Petrovski v Nasev; The Estate of Janakievska,⁹⁴ Hallen AsJ held that the testator did not have testamentary capacity, but said that even if she did have capacity the Court would set aside the will for undue influence.⁹⁵ Hallan AsJ said that the testatrix’s brother-in-law’s consistent pressure was more than an appeal to her sentiment or affection, and caused the deceased to prepare the will for the sake of a quiet life, thus her free judgment was found to have been overborne. Importantly, the Court found that the deceased’s physical and mental strength were relevant factors in determining how much pressure was necessary in order to overbear her will.⁹⁶

Undue influence in succession law is commonly understood to constitute ‘conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby.’⁹⁷ Decisions as widespread in time as Powell J in Winter v Crichton⁹⁸ and Hannen P in Wingrove v Wingrove have acknowledged that the doctrine of testamentary undue influence has been the subject of considerable misapprehension.⁹⁹ Although the concept of testamentary undue influence is similar in some respects to the equitable doctrine, proof of undue influence in contesting the viability of a will is more onerous and complex. The term ‘undue influence’ with respect to testamentary dispositions connotes ‘coercion’¹⁰⁰ or ‘importunity’ against a testator to overpower the volition of the testator.¹⁰¹ In Boyse v Rossborough, the House of Lords held that ‘in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or by fraud.’¹⁰² In Winter v Crichton, Powell J states:

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced to do anything.¹⁰³

Courts are reluctant to disturb a will after the testator has died because courts recognise that a testator has freedom of testamentary disposition, regardless of whether exercised in a manner that is unfair or unjust.¹⁰⁴ The probate jurisdiction will declare a testamentary gift as invalid on the ground of undue influence where it is proven that pressure was applied to a testator, such as to vitiate the freedom and voluntariness of the making of that gift.¹⁰⁵ In Hall v Hall, Wilde J defined undue influence as:

pressure of whatever character, whether acting on the fears or the hopes, if so exerted as influence to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.¹⁰⁶

The judgment in Hall v Hall set the parameters for testamentary undue influence. This case considered whether a woman had procured the will of her husband by violence, threats and intimidation. Wilde J instructed the jury that ‘to make a good will a man must be a free agent.’¹⁰⁷ The jury found that the claim of undue influence was proven and the Court pronounced against the will.¹⁰⁸

In some respects, testamentary undue influence is similar to common law duress or the equitable doctrine of undue influence,¹⁰⁹ because it is necessary to establish actual proof of coercion in proving each of the vitiating factors.¹¹⁰ The distinction between testamentary undue influence and fraud was made in Trustee for the Salvation Army (NSW) Property Trust v Becker.¹¹¹ Mason P stated that to prove testamentary undue influence it must be shown that the testator did not intend the disposition. The testator must have been coerced into making it. On the other hand, fraud that is ‘sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud there is no overpowering or coercion.’¹¹² A commonly cited definition of testamentary undue influence comes from Hannen J in Wingrove v Wingrove: ‘To be undue influence in the eye of the law there must be—to sum it up in a word—coercion.’¹¹³

Nineteenth-century English custom acknowledged the social acceptability of lobbying or pressuring testators for bounty on the basis of appeals to affection, kinship or sentiments of gratitude or pity, but these types of influences fell short of coercion.¹¹⁴ In The Will of Wilson, the Court defined undue influence as an overpowering or overbearing of the testator’s volition, judgement or wishes by substitution of one mind for another.¹¹⁵ A will that is the result of undue influence will be void.¹¹⁶ The Court has jurisdiction to refuse to grant probate of a will either in part or in whole where it is proven that the will is tainted with undue influence.¹¹⁷ The difficulty in proving coercion, along with the costs implications of failing to prove undue influence once pleaded, may explain why there have been a small number of successful claims of testamentary undue influence in New South Wales.¹¹⁸ The requirement of proof ensures that it is notoriously difficult to succeed in establishing such a claim.¹¹⁹

The limitation of the testamentary doctrine of undue influence forces many cases to be pleaded pursuant to the doctrine of suspicious circumstances.¹²⁰ In this situation, the testator does not have knowledge and approval of the contents of the will that arouses the court’s suspicion.¹²¹ There are no restrictions on the factual situations, which may constitute suspicious circumstances. Wherever a well-grounded suspicion is raised, those who wish to prove that the will is valid must remove the suspicion.¹²² If they fail to do so, the whole will is void. The test for testamentary capacity was established in Banks v Goodfellow.¹²³ The Court determined that a testator must have a sound mind, memory and understanding to make a will. The courts will consider the age of the testator, their mental state and whether there are any factors vitiating their intention or ‘knowledge and approval’ of the will, such as fraud or undue influence. A victim of undue influence is a testator who has testamentary capacity but has been coerced into executing a will. Therefore, the issue of undue influence is separate from the doctrine of suspicious circumstances. The burden of establishing undue influence falls upon the person attacking the validity of the will.

CIRCUMSTANTIAL EVIDENCE OF TESTAMENTARY UNDUE INFLUENCE

In Nicholson v Knaggs, it was held that merely establishing a prima facie opportunity for the exercise of testamentary undue influence was insufficient to vitiate a will.¹²⁴ It is the responsibility of the party making the allegation of undue influence to demonstrate that there has been such undue pressure brought to bear against the testator that has led to the production of the will based on the balance of probabilities.¹²⁵ Testamentary undue influence is difficult to prove as the testator’s own evidence is unavailable and the facts surrounding the procurement of the will may be within the sole knowledge of the alleged influencer.

Late in the nineteenth century, the English probate courts confirmed that the presumption of undue influence that applies in the courts of equity and founded upon the relationship of the parties was not applicable in probate.¹²⁶ The principle governing the standard of proof to challenge the validity of a will founded upon circumstantial evidence was enunciated by Lord Cranworth in Boyse v Rossborough:

In order to set aside the will of a person of sound mind, it must be shown that the circumstances under which it was executed are inconsistent with any hypothesis but that of undue influence, which cannot be presumed, but must be shown to have been exercised, and exercised in relation to the will itself, and not merely to other transactions.¹²⁷

This decision confirmed a very high threshold of proof.¹²⁸ The main problem with undue influence in probate is the high evidentiary burden, which has led to it being too difficult to prove in practice.¹²⁹ This can lead to a will being admitted to probate where it does not reflect the true intentions of the testator. The Australian Law Reform Commission (ALRC) has suggested that lawyers can play a more important role in ensuring that the will gives legal effect to the testator’s instructions and ensuring it is validly executed and attested.¹³⁰ It is imperative to ensure legal practitioners are aware of the possibility of civil liability against them from disgruntled beneficiaries where instructions are not properly kept and the will is not properly executed.

In Nicholson v Knaggs, Vickery J held that when the Court is called upon to draw an inference of testamentary undue influence from circumstantial evidence, it must be satisfied that the circumstances raise a more ‘probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.’¹³¹ This statement lowers the standard of proof set in Boyse v Rossborough.¹³² In Nicholson v Knaggs, the circumstantial evidence raised a more probable inference of undue influence.¹³³ Vickery J criticised the pre-existing standard of proof as imposing a significant constriction on the capacity of the doctrine of testamentary undue influence to provide an effective remedy.¹³⁴ Vickery J stated that the standard of proof for undue influence in probate should be based on the accepted civil standard of proof applied in Australia.¹³⁵ He also suggested that the common law test should be consistent with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD):

The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.¹³⁶

Article 12 of the UNCRPD affirms that persons with disabilities have the right to recognition everywhere as persons before law, the right to enjoy legal capacity on an equal basis, and the right to be free of conflict of interest and undue influence. The move towards promoting decision-making as paramount in the UNCRPD is a positive step in affirming a normative role of the law in upholding the right of equal recognition for persons with disability.¹³⁷ The New Zealand Court of Appeal case of Carey v Nicholson also supports the widening of the doctrine of undue influence in probate cases to mean impairment of judgment as opposed to improper conduct of the party in ascendancy.¹³⁸ In the Supreme Court of New South Wales case of Chalik v Chalik, Henry J states, ‘Undue influence may be determined based on circumstantial evidence and the use of inferential reasoning.’¹³⁹ Therefore, there has been an increasing shift towards a broader interpretation of testamentary undue influence that is consonant with the equitable view of undue influence in inter vivos transfers of property.

In Tobin v Ezekiel; Estate of Lily Ezekiel, Brereton J ruled that an allegation of undue influence need not be proven by direct evidence,¹⁴⁰ but rather that the question ought to be decided upon all of the circumstances of the case based on the decision of Dixon J in Briginshaw v Briginshaw¹⁴¹ and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.¹⁴² A more holistic approach that considers the nuances found in the surrounding circumstances of the facts would be a more appropriate method in the assessment of testamentary undue influence. First, it would be consistent with well-settled principles found in other areas of civil litigation. Secondly, it provides a fairer interpretation of facts that examines the broader circumstances rather than too narrowly considering the supposed mind of the testator in an overly strict and technical sense.

TESTAMENTARY UNDUE INFLUENCE IN CANADA

Canadian authorities, particularly in British Columbia, have in more recent times tended to adopt a more flexible concept of testamentary undue influence than the Boyse v Rossborough test.¹⁴³ British Columbia introduced a new approach in dealing with testamentary undue influence under section 52 of the Wills, Estates and Succession Act:

In a proceeding, if a person claims that a will or any provision of it resulted from another person

• being in a position where the potential for dependence or domination of the will-maker was present, and

• using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.¹⁴⁴

This effectively shifts the onus of proof to the party propounding the validity of the will.¹⁴⁵ British Columbia has departed from the traditional legal approach, where the onus is on the challenger of the will to prove testamentary undue influence. The legislation was introduced to clarify, simplify and streamline processes related to inheritance and the administration of estates. The ALRC has suggested that law reform should consider the effect of the British Columbia reform.¹⁴⁶ Even prior to the introduction of the Act, the British Columbia Court of Appeal in Tribe v Farrell upheld a first instance judgment setting aside a will in favour of the deceased testator’s caregiver on the ground that it was procured by the caregiver’s undue influence.¹⁴⁷ The trial judge found that undue influence was present due to psychological pressures playing on the testator’s fear that the caregiver would leave him rather than overt threats or mistreatment.¹⁴⁸

Prior to the introduction of this legislation in British Columbia, Dennis Klinck argued that it was inconsistent and unreasonable for the Canadian courts to hold testamentary undue influence to a higher standard compared to equitable undue influence in inter vivos transfers.¹⁴⁹ There is no plausible justification for deeming testamentary undue influence as being less worthy of protection. The Canadian judiciary historically followed a narrow approach to testamentary undue influence. In the case of Vout v Hay, the Supreme Court of Canada ruled that even though there may be suspicious circumstances, the burden of proof remains with those challenging the will, highlighting the difficulty in establishing testamentary undue influence.¹⁵⁰ In Re Underwood Estate, Wimmer J of the Court of Queen’s Bench for Saskatchewan argues that undue influence requires coercion to be legally proven.¹⁵¹ In the Supreme Court of Canada case of Goodman Estate v Geffen, Wilson J presented a wide definition of undue influence to support a shift away from the strict and technical approach in the interpretation of testamentary undue influence.¹⁵² The facts of the case involved a testatrix who executed a will that left her estate to her daughter for life with the remainder to all her grandchildren. By a later will she left her house to the daughter outright, bequests to her three sons and the residue to her daughter for life. After the testatrix’s death, the daughter and her brothers consulted a legal practitioner and the house was resettled for life for the daughter with the remainder to the daughter’s children and nephews and nieces (i.e. the testatrix’s grandchildren). Two of her brothers and a nephew agreed to be trustees. After the daughter’s death, the executor (who was the daughter’s son) sought to set aside the resettlement on the presumption of undue influence that was alleged to have been perpetrated by the trustees. Although the Court unanimously held that no presumption of undue influence had been proven, the obiter dicta of Wilson J has nevertheless remained influential.¹⁵³ Wilson J made several key points:

• a relationship giving rise to the presumption is one in which the ‘potential for domination inheres in the nature of the relationship itself,’¹⁵⁴

• whereas in the case of commercial relationships, the plaintiff must show that ‘the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it’;¹⁵⁵ and

• when the plaintiff has established the presence of circumstances triggering the presumption, the ‘onus moves to the defendant to rebut it’ by showing that the plaintiff entered into the transaction ‘as a result of his own “full, free and informed thought”.’¹⁵⁶

In the Court of Queen’s Bench of Manitoba case of Re Kohut Estate, a holistic approach was endorsed by Kennedy J:

One must look at all of the surrounding circumstances and determine whether or not a testator had a sufficiently independent operating mind to withstand competing influences.¹⁵⁷

The testatrix was found to have had testamentary capacity and the issue was whether undue influence had been exerted. The testatrix had instructed several solicitors and had executed wills with different provisions. No suggestion was made that the testatrix was subject to coercion. The Court found that several of the wills had been ‘the result of what those around her had in mind and not the exercise of the deceased’s own volition, albeit influence innocently exerted.’¹⁵⁸

However, some Canadian provincial courts have maintained the distinction between testamentary undue influence and inter vivos dispositions.¹⁵⁹ In Seguin v Pearson, the Ontario Court of Appeal confirmed the traditional legal approach: ‘In the case of wills, it is testamentary undue influence, amounting to outright and overpowering coercion of the testator, which must be considered.’¹⁶⁰ However, there clearly has been a trend in the Canadian law to softening the strictures of testamentary undue influence. The legislation in British Columbia offers a sensible approach forward in providing a model of succession law reform that properly recognises that wills can be set aside for undue influence by shifting the evidentiary burden from the party attacking the validity of the will to the propounder of the will. The shift in the burden of proof means that it is incumbent on the propounder to argue that the will should be admitted to probate and prove that it has not been vitiated by undue influence. This reduces the unreasonably high evidentiary burden that has prevented wills from being overturned where the will does not truly reflect the intentions of the testator.¹⁶¹

LAW REFORM OF TESTAMENTARY UNDUE INFLUENCE IN AUSTRALIA

In 1986, Justice Hutley recommended to the New South Wales Law Reform Commission that the equitable principles, including the presumptions of influence, should be introduced into succession law to encourage the use of independent advisers.¹⁶² However, the Commission decided that this recommendation was beyond its scope of reference but that it would welcome further comments on the ‘vexed issue.’¹⁶³ Roger Kerridge argues that the propounder should carry the burden of proof to demonstrate that the testator had intended to execute the will and that it is free of undue influence.¹⁶⁴ Proposals for the introduction of a rebuttable presumption arise from the view that parties challenging the validity of a will on the basis of undue influence bear an unrealistically high onus of proof. Fiona Burns suggests that there are no good policy reasons why inter vivos and testamentary gifts ought to be treated differently.¹⁶⁵ Furthermore, Kerridge states ‘it is too easy in England to coerce, or deceive, a vulnerable testator into making a will and it is not easy enough to challenge a suspicious will when one comes to light.’¹⁶⁶ Shifting the burden of proof to the propounder would assist in preventing unwanted and unintended testamentary dispositions from being admitted to probate.

If applied, the equitable doctrine would trigger a rebuttable presumption of undue influence when certain relationships and factual circumstances exist. In contrast, Fiona Burns has suggested that it would be more appropriate to apply a modified doctrine. She presents a three-tiered approach involving the reformulation of:

1. The definition of undue influence;

2. The evidence that can be relied on to prove undue influence; and

3. The standard of proof.¹⁶⁷

The main reason put forward by Pauline Ridge for law reform is the difficulty of proving coercion that is required by the testamentary doctrine, thus making it a practically unenforceable remedy.¹⁶⁸ In Australia, undue influence continues to be raised. However, it is often pleaded in conjunction with other issues, mainly lack of testamentary capacity or suspicious circumstances, due to the difficulty of proving undue influence in probate.¹⁶⁹

Kerridge suggests that wills should be executed in front of a solicitor or a notary who takes no part in the will making process and has no connection whatsoever to the beneficiaries.¹⁷⁰ He also suggests that potential beneficiaries should be put on notice if they or someone they know assisted in the process, who would then be required to rebut the presumption of undue influence by a process whereby they are required to show that the will was made independently.¹⁷¹ Although this may help to dispel or even outline any suspicious circumstances that may have occurred during the will-making process, these recommendations may present some difficulties in practice as it would increase costs and time inefficiencies. It is important to also consider the consequences of such reform and what can occur if a grant of probate is refused. Refusing a grant of probate of a will may lead to the application of the intestacy rules and the outcome may not bear any resemblance to the deceased’s intentions. This is a significant factor that the court must weigh up before deciding whether to allow a grant of probate. A court wants to be assured that the will in question expresses the authentic and independent intention of a testator.

The Victorian Law Reform Commission has recommended that one of the witnesses should certify that the testator signed the will freely and voluntarily and appeared to have the requisite mental capacity necessary to make a will.¹⁷² Submissions were made to the Commission based on professional guidelines to assist practitioners with identifying and preventing undue influence, including:

1. The importance of taking instructions from the testator alone;

2. Carefully observing common characteristics of how a person subject to undue influence may present (such as being shy, reserved or accompanied by another);

3. The importance of making enquiries about previous wills, and possibly obtaining previous wills; and

4. The need to take and retain detailed file notes in the event that a will is challenged.

Australia should consider educating legal practitioners in ways to recognise and prevent the abuse of the frail and elderly. Further education and training and the use of guidelines, such as those developed by British Columbia, may help in reducing the likelihood of undue influence.

CONCLUSION

The law of testamentary undue influence was formulated in the Ecclesiastical Courts in England centuries ago and it has still been followed and affirmed by many courts exercising probate jurisdiction to this day. The Ecclesiastical Courts themselves fell into disuse in England since the introduction of the Court of Probate Act 1857 that removed the testamentary jurisdiction from the Ecclesiastical Courts to the Court of Probate.¹⁷³ Yet due to the application of precedent under the doctrine of stare decisis, principles formed when community values were quite different from those of the present day continue to be applied in contemporary courts, even if the perpetuation of some of those precedents may become outdated at best and may have the potential to result in a denial of justice at worst. In the case of testamentary undue influence, the coercion test continues to be upheld, despite the fact that judges, academics and legal practitioners have pointed out its inadequacy to protect the vulnerable, frail and elderly. Although there has been a recent trend in favour of relaxing the test in proving undue influence in probate by allowing circumstantial evidence of a more probable inference of undue influence to apply, it is necessary to consider more comprehensive law reform to definitively settle the issue. The legislative changes in British Columbia provide a potential example of law reform on testamentary undue influence in shifting the burden of proof to the propounder to defend the validity of the will, particularly that the will represents the actual intention of the testator and that it is free from undue influence. The time is overdue for law reform in Australia to review the law of testamentary undue influence and to examine thoroughly whether it affords adequate protection against improper influence in the will making process, and if not to consider what legislation can be passed to ensure that testamentary undue influence is discouraged and justice results from the application of the law.

Author Biographies

Mary-Ann de Mestre is a sessional academic at Macquarie Law School, Macquarie University, and a practising solicitor specialising in wills and estates.

Henry Kha is Senior Lecturer at the School of Private and Commercial Law, Faculty of Law and Justice, University of New South Wales.

Footnotes