Undue Influence and Wills: What Could Change

What is testamentary undue influence?

When someone makes a will, the law expects that the decisions in it are genuinely theirs. Testamentary undue influence is what happens when that is not the case — when another person pressures, coerces, or manipulates the will-maker into leaving their estate in a way they would not otherwise have chosen.

This is not the same as ordinary influence. Family members talk about inheritance. A son might suggest that his mother leave her house to him. A spouse might express a strong view about what should happen to a business. None of that, on its own, is unlawful. People are entitled to persuade, to express opinions, and even to make emotional appeals.

Undue influence crosses the line into something more serious. It means the pressure was enough to overpower the will-maker's own judgment — so that the will no longer reflects what they actually wanted, but what someone else wanted for them.

Why the current law makes this hard to challenge

Under the current law in England and Wales, testamentary undue influence is notoriously difficult to prove. There are two main reasons for this.

There is no presumption

In contract law and lifetime gifts, if someone can show that a relationship of influence existed and that the transaction "calls for explanation," the court can presume undue influence took place. The burden then shifts to the other side to prove it did not.

For wills, no such presumption exists. The person challenging the will bears the full burden of proof throughout. They must demonstrate, on the balance of probabilities, that the will-maker was coerced. As summarised by the courts in Re Edwards (Deceased), the claimant must show that the will-maker's will was "overborne" — that the pressure amounted to coercion, not merely persuasion.

The key witness is dead

The person best placed to say whether they were pressured — the will-maker — is no longer alive by the time the will is challenged. Undue influence typically happens behind closed doors, within close relationships, and often when the will-maker is elderly, isolated, or unwell. Direct evidence is rare. The alleged influencer is often the very person who controlled the will-maker's daily life: a carer, a child, or a spouse.

The combined effect is stark. As the Law Commission notes in Modernising Wills Law (Law Com No 419), there have been only five successful claims of testamentary undue influence in reported cases since their Consultation Paper was published. Even where circumstances are deeply suspicious, claims commonly fail for a lack of sufficient evidence.

What the draft Bill proposes

The draft Wills Bill, published alongside the Law Commission's report in May 2025, would introduce a new statutory framework for testamentary undue influence. The draft Bill has not yet been introduced to Parliament, and there is no guarantee it will be enacted. But if it does become law, the change would be significant.

A new power for the court to infer undue influence

Under clause 15 of the draft Bill, where undue influence is alleged in a statement of case, the court would be able to infer that a will was made as a result of undue influence — if it is satisfied there are reasonable grounds to suspect it.

This does not replace the existing common law. Testamentary undue influence can still be proved directly, as it always has been. What the draft Bill adds is a supplementary route: where the evidence gives reasonable grounds for suspicion, the court can draw an inference of undue influence. The person defending the will would then need to prove, on the balance of probabilities, that the will-maker was not coerced — that is, that the testator acted free of coercion.

Three factors the court would consider

In deciding whether there are reasonable grounds to suspect undue influence, the court would be directed to consider three factors:

1. The conduct of the person claimed to have exerted undue influence — including their involvement in the making of the will. Did they choose the solicitor? Did they attend meetings? Did they give instructions? Did they keep the will secret from other family members?

2. Whether there was a relationship of influence between that person and the will-maker. The draft Bill does not prescribe which relationships count. Rather than listing categories (such as "carer" or "medical adviser"), it leaves the court free to assess the actual relationship on the facts — whether between a parent and child, a resident and their carer, or a person and their neighbour.

3. The circumstances in which the will was made. This could include the timing of the will, whether it departs drastically from an earlier will, whether it was made around the time the will-maker became isolated from family, or whether a new person had recently entered their life.

The court is not limited to these three factors. It may consider any other circumstances it thinks relevant. But these three provide the framework for the analysis.

Not all influence is undue

The Law Commission is careful to emphasise that ordinary influence is a normal part of family life. Testators commonly leave significant gifts to people with whom they have close relationships of trust and confidence — their children, their spouse, a close friend. The fact that a will favours one person over another, or departs from what family members expected, does not on its own suggest anything wrong.

The statutory inference is not designed to penalise natural relationships or to allow disappointed beneficiaries to challenge any will they dislike. It targets coercion — behaviour that overpowers the will-maker's own wishes. What amounts to coercion will depend on the individual case. For a frail, elderly person who is dependent on a single carer, even sustained low-level pressure may be enough. For a healthy, independent person, much more would be required.

The court's task, as the case law puts it, is to determine whether the will-maker "acted as a free agent." That question does not change under the draft Bill. What changes is the court's ability to draw conclusions from the surrounding evidence when direct proof of coercion is unavailable.

Why the Law Commission chose a discretionary approach

The Law Commission considered two possible models for reform: a structured approach, which would have defined specific relationships that automatically give rise to a presumption of influence, and a discretionary approach, which would give the court flexibility to assess the circumstances of each case.

They chose the discretionary approach. Their reasoning was that testamentary undue influence most commonly arises within family relationships — between a parent and an adult child, between spouses, or between a person and a close friend or carer. These are precisely the relationships in which it is also entirely normal and legitimate to leave substantial gifts. Automatically presuming influence in those relationships would be both over-inclusive and unworkable.

A discretionary approach avoids the need to draw arbitrary lines around which relationships count. It allows the court to respond to the wide variety of factual scenarios in which coercion actually occurs.

What should you do now?

The draft Bill has not been introduced to Parliament, and the current law applies in full. But whether or not these reforms are enacted, the underlying concern is real: vulnerable people can be pressured into making wills that do not reflect their true wishes, and this is difficult to detect and even harder to prove after the event.

The single most important thing you can do to protect yourself and your will is to ensure there is a clear, independent record of your intentions. A will that is prepared with professional oversight — where a qualified person has spoken to you privately, confirmed your instructions, and documented the process — is significantly harder to challenge on the grounds of undue influence.

GetWill provides independent solicitor review of every will. Your instructions are recorded, your identity is verified, and the final document is checked by a qualified professional. This creates a contemporaneous record of your wishes that stands as strong evidence of your true intentions, both under the current law and under any future reforms.

If you have concerns about a family member who may be vulnerable to pressure, or if you want to ensure your own will is as robust as possible, getting professional input is the most practical step you can take — today.