What is Undue Influence?

Undue Influence is the conduct which overbears the testator (will maker) of the will, where the circumstances were not free and voluntary in order for someone to benefit from the will to the detriment of others.

To decipher this from fraud Wingrove v Wingrove (1885) stated undue influence is only when the will of a person who becomes a testator is coerced into doing what he or she does not desire, whereas fraud is the act of misleading.

How is Undue Influence established?

The doctrine of undue influence can be established two ways; actual or presumed. These differ in the evidence provided by the parties, with the overall onus of proof lying with the person asserting undue influence.


Actual undue influence arises when it is proven as a fact, that the actions were to such a degree that the will maker was unable to exercise their independent will.

When contesting the will on this basis, proof of the accused party’s ‘influence over the mind’ of the testator must be established in order for equity to intervene.


Presumed undue influence arises from proof of the nature of the relationship between the relevant parties. This relationship must show one party ‘exercise[d] dominion’ over the other due to the testator’s trust and confidence in the dominant party.

If presumed undue influence is established, the burden falls to the defendant to prove this transaction was purely voluntary and well understood by the plaintiff.

To prove such influence the complainant must contest the will after the testator dies in court. The following factors must be shown:

  • The will left property in an unforeseen way in the circumstances, particularly without obvious explanation.
  • The testator was dependent on or trusted the person exerting influence.
  • The testator was vulnerable due to illness or frailty.
  • The influencer took advantage of the testator and benefitted from the Wills asset distribution.

The process of undue influence heavily relies on credible witnesses who knew the testator and can testify to the relationship between the testator and the defendant (person benefitting from the will).


A rule of ‘suspicious circumstances’ calls upon the Courts not to grant probate without full and entire satisfaction that the Will did express the real intentions of the deceased.

This rule is also outlined in the Succession Act 2006 No 80 s96 (2)(b) granting the Court power to revoke approval of probate ‘where it was obtained by fraud or undue influence’.

If undue influence has been proven to have affected the entirety of the Will, the entirety will be invalid however, if only part of the Will has been affected the remainder is still valid.

Examples of undue influence: Case Law

Edwards v Edwards & Ors [2007] EWHC 1119 (Ch):

Son of the deceased alleged that his brother used undue influence to persuade the mother to exclude the plaintiff from the will. The Court ruled that the child deliberately fed false information to sway the mother’s mind in his favour amounting to undue influence.

Hayward (As executor of Felton Estate) v Speedy & Felton (2021) NSWSC 943

A dispute between siblings regarding funds from their father’s sale of properties. The gift of money to the daughter was determined as being procured through undue influence. The parents were both vulnerable to exploitation being frail, cognitively impaired and elderly with a large dependence on their daughter emotionally for all activities of their lives. Furthermore, no independent legal advice was obtained regarding the gifts, which were so substantial as not to be reasonably accounted for on the ground of friendship and relationship. As a result, the estate of the father withheld the gits.

Contact Us

If you believe someone has exerted undue influence by coercing a will maker to benefit them individually in the Will we recommend seeking independent legal advice.

If you would like to discuss your unique situation with a Wills & Estates lawyer, please contact Etheringtons Solicitors in North Sydney on (02) 9963 9800 or via our online contact form.