The Difficulties in Proving “Undue Influence”

2011 case of Hubbard v Scott EWHC 2750 (Ch) 2012 W.T.L.R.29.

In this case only just decided, the Claimant sisters Hubbard had been the default beneficiaries in the Testator’s 1997 Will if his principal beneficiary predeceased him which she did.  However, 11 days before he died in 2009, the Testator made his final Will in which he left his entire estate to K his cleaner.  Hubbard contested K’s evidence that she had met the Testator three years earlier and had formed a friendship with him and that there had even been talk of marriage; Hubbard contended that K had met him only 10 weeks before his death and had been nothing more than his cleaner.  Accordingly Hubbard submitted that K had exerted undue influence over the Testator when he made his last Will.  Hubbard asserted also that he had lacked Testamentary capacity to approve his Will.

The Judge held that in order to establish undue influence one needed to prove victimisation, domination or coercion; further, it had to be shown that the Testator’s final Will was not the “offspring of his own volition”.  Nothing in Hubbard’s evidence proved that K had induced the Testator to make his final Will in the terms he had.  A distinction was to be made between legitimate persuasion and overbearing a Testator’s volition.  There was no evidence of victimisation or coercion nor of any mental frailty on the part of the Testator.

In addition, there were other explanations for the 2009 Will; the Hubbard sisters and their mother’s visits to the Testator had decreased during the last two years of the Testator’s life and there was no one else that the Testator felt obliged to provide for.

This is a further example of how difficult it is to prove Undue Influence however compelling the prima facie evidence appears to be.

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