Within the next decade the Wills Act will be 200 years old. The world has changed a lot in that time, so it is not surprising that the Law Commission has been considering whether the law regarding Wills is still fit for purpose. After a long consultation period, the Law Commission’s report titled “Modernising Wills” was finally published in May 2025.
One of the issues considered by the Law Commission was undue influence.
Challenging a Will on the basis that a testator was unduly influenced by another person is generally regarded as being a very difficult claim. Whilst it is not known how many cases are settled where undue influence is claimed, those that make it to court are often unsuccessful. A person claiming undue influence must prove that the testator was somehow coerced, meaning that there was pressure that overpowers their volition without convincing the testator’s judgement. This is more than merely persuading a testator or making appeals to them, which are perfectly legitimate. This is a high legal burden and coupled with the fact that there is often a lack of independent witnesses, can make a claim very difficult indeed.
The Law Commission accepted that it was often too difficult to challenge a Will on the grounds of undue influence and that the current law might not be protecting vulnerable testators from financial abuse. It identified that those most at risk of financial abuse were those who were isolated, likely as a result of age, illness or disability.
Following the consideration of a number of factors, the conclusion of its research led to the Law Commission to recommend that:
“…the court should be able to infer that a Will was made as a result of undue influence where there are reasonable grounds to suspect undue influence, considering (among other matters) the conduct of the person claimed to have exerted undue influence in relation to the Will, whether there was a relationship of influence between that person and the testator, and the circumstances in which the Will was made.”
Would this change likely lead to more cases of undue influence being successful? As it stands, the common law governing the principles of testamentary undue influence would not be amended and a claim would need to be proved in the usual way. As for the inclusion of adverse inferences, the court has already shown that it can draw inferences from the wider circumstances of a case. It did so in the case of Schrader[1] but this has not resulted in an increase in successful undue influence claims. There have also been later cases, such as in Rea v Rea[2] in 2024 where similar facts did not result in a successful claim.
However, a key difference to the current law would be that once there are grounds to suspect undue influence, the suggestion is that the burden of proof would then shift to those benefitting from the ‘new’ Will to show that there was not undue influence. This could have a much more significant impact on claims of this nature, where often the only surviving witness is the beneficiary. The change in approach could therefore result in an undue influence claim being more likely to succeed.
It is important to note that there is not yet a change in the law and these are only the proposals of the Law Commission. However, they are expected to be adopted. Even if enacted into law, it is likely to be a few years before we see if these proposals cause there to be any change in the success rate of undue influence claims.
[1] Shrader v Schrader [2013] EWHC 466 (Ch), [2013] W.T.L.R 701, [2013] 3 WLUK 258
[2] [2024] EWCA Civ 169, [2024] 2 WLUK 362, [2024] 1 P. & C.R. DG24