Heir hunters like Finders do not just deal with intestacy but trace beneficiaries to wills where the whereabouts of the named heirs is not known. They find that even where there is a will there can be problems and disputes between heirs are not uncommon.

Over the last few years there has been a significant rise in the number of Contentious Probate cases being initiated in the High Court in England and Wales and the basis for contesting wills is often an allegation of undue influence over the Testator. Although undue influence is frequently pleaded, it is rarely proved.

Two cases from 2013 illustrate the difference and show that the if an heir wishes to contest a will where they think the named beneficiaries may have had an undue influence, the bar is set very high.

In Brennan v Prior & Others, the daughter of the deceased, Ms.Brenan, claimed she had been assured by her father during his lifetime that she would be his sole beneficiary and that her father had never previously made any will because he intended the whole estate to be inherited by her and not his siblings.

However, 12 days before his death, he made a “deathbed” will leaving the bulk of his £0.5 million estate to his siblings and a £100,000 legacy to Ms Brennan. Ms Brennan challenged the will on a number of grounds, including undue influence by the siblings with whom there was “colossal distrust”. Ms Brennan’s father was part of a very traditional family and because she had been born out of wedlock, she claimed they had long since rejected her.

Regarding the allegation of undue influence the judge ruled “I do not regard it as irrational or suspicious that Francois had divided loyalties all his adult life, and recognised them at the last. There is plenty of evidence that [his sisters] had the opportunity to influence Francois in the making of his will…However, I find persuasion but not coercion.” Ms Brennan was unable to support her claim to be her father’s sole heir with any credible evidence and the will was found to be valid.

In contrast, in Schrader v Schrader the allegation of undue influence was upheld. The deceased had made a will in 1990 which left her estate (including her house) to her two sons B and N who would benefit in equal shares. In 2006 she made a second will which left her house to her son N. The rest of the estate, which had little value, was to be divided between the two sons as equal beneficiaries.

When N produced the will six months after his mother’s death. B sought to challenge its validity on several grounds, (he was no longer a beneficiary of the house) one of which was undue influence by N which was supported by the fact that he had made a number of hand-written amendments to the draft will.

The judgement found in favour of B and found the second will to be invalid. There were a number of reasons that lead the judge to believe that N had exerted undue influence over his mother in persuading her to make him the heir of the house. There was no reason identified in evidence for the mother changing her will in favour of N who was found to be a “forceful” man with a “strong physical presence” in comparison with his mother who was vulnerable. N was directly involved with the drafting of the will, the family solicitor was not engaged and N waited six months after the Testatrix’s death to produce the will suggesting he may have had misgivings about it.

For further information and advice contact Finders, 6-8 Vestry Street, London N1 7RE 020 7490 4935

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by Daniel Curran