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Undue Influence

It is important to have a Will which reflects the Willmaker’s wishes.  The law says that a person is entitled to leave his or her assets to whomever he or she wishes.  However, situations arise where the Willmaker is subjected to undue influence and (under pressure), makes a Will in such a way that it goes against the Willmaker’s real intentions.  The usual reason is that the person who applies the undue influence is benefitting more than they would normally expect to under the Will (without the undue influence).  A simple example can be where a child of the Willmaker threatens to not visit the Willmaker or not allow the Willmaker’s grandchildren to visit unless the child (or grandchildren) are favoured in a particular way in the Will.  It can also happen where the Willmaker is relying on a particular individual for assistance or support and that individual threatens to withdraw the support unless he or she benefits in a particular way in the Will.  The onus of proving undue influence rests with the person alleging that it took place.  It can sometimes be difficult to prove (even though obvious). It follows that if a person is making a Will, then the Willmaker should be interviewed alone.  The Willmaker should be in a position to discuss his or her wishes with the solicitor without any interference from a third party.

There is no obligation for the Willmaker to disclose the terms of the will to anyone.

The Court can set aside a Will if the Judge believes that the Willmaker has been the subject of undue influence.

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