The issue?
It's often the case that as parents get older, their children begin to take on more responsibility for their care and wellbeing, repaying the years of love and support that those parents have given in turn.
However, due to a variety of factors, including geography, wealth or having families of their own, it can sometimes be that one child in particular ends up taking most or all of the responsibility of caring for a parent or elderly relative. This can lead to some children asking their parents (or their parents wanting) to update their wills to give them a greater inheritance in recognition of the care they've provided. While this may in some cases reflect the parent’s wishes, there may be cases where this can give rise to problems down the line, as the will may be open to challenge on the grounds that the parent only made the will as a result of the child’s undue influence on them.
Undue influence?
As a brief summary, there are two kinds of undue influence; actual and presumed.
Actual undue influence is when a person is subject to direct pressure or coercion by another. This might include threats, harassment or manipulation. In the context of wills, actual undue influence occurs when someone coerces or manipulates the testator into making or changing their will to benefit them, the influencer, or someone else, rather than representing the testator’s true wishes. Normal influence (ie persuasion or general discussion) is acceptable and isn’t enough to overturn a will; there has to be undue influence sufficient to overcome the testator’s volition to render a will invalid. These cases require direct evidence of actual undue influence and are, therefore, hard to prove.
Presumed undue influence on the other hand is more nuanced and requires less direct evidence. In these cases, a presumption of undue influence arises where there is a relationship of “trust and confidence” between the parties, and where one person in a dominant position takes advantage of the other’s vulnerability or dependence. Gifts and dispositions in a person’s lifetime can be set aside if a presumption of undue influence arises – but no such presumption applies to testamentary gifts.
The relationship between a parent and a young child, or solicitor and client, are examples of a relationship where the presumption of undue influence arises. There is no such presumption though in the relationship between an adult child and parent. So, where an adult child takes responsibility for their parent’s care, no presumption will arise. In these cases, someone alleging undue influence would have to show that there was a relationship of trust and confidence between the two parties (ie the parent trusted and had confidence in their adult child) and that there was a gift or disposition which required an explanation.
If those hurdles can be overcome, the burden would then be on the child to explain how the transaction came to be and why there was no undue influence.
Effect?
If undue influence is established, the transaction affected can be set aside. Generally, a will that’s tainted by undue influence can be set aside by the court, and the parties can be restored to their original position under a previous will or intestacy, though the remedy will also be affected by the facts of each case, and the person who suffered as a result of undue influence may seek other remedies (such as damages, injunctions, or rescission).
Commentary
It's easy to understand why children caring for their relatives might look to persuade that relative to make greater provision for them in their will or make gifts to them during their lifetime to reflect the kind and generous care they've provided for them. In some cases, this will be the genuine wish of the testator. However, children looking to persuade their relative to change their will or make gifts need to be careful, as they may overstep the line, and go from merely trying to persuade their relative to instead unduly influencing them to do something they may not otherwise have wanted to do. This may lead to the will or gifts in question being rendered void if a claim is brought.
In our experience these cases are often costly for all the parties involved, both in money and time spent. We’d suggest that it would be preferable for all involved to discuss matters as a family, to ensure that any plans being considered are known about, and for the parent to first take independent advice from a solicitor without their children’s input.
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