The law’s response

9.8          The law does not ignore coerced transactions. Transactions which involve undue pressure may be rendered void or voidable through doctrines of equity and probate. With respect to lifetime transactions, the equitable doctrine of undue influence places the emphasis on the person who seeks to gain under particular transactions to demonstrate that they were not the result of undue influence.[10] Probate also has a doctrine of undue influence, but it is different from the equitable doctrine.[11] Probate law also scrutinises closely wills that benefit ‘strangers’—those unrelated to the testator.

Undue influence

9.9          The probate law doctrine of undue influence requires more than just pressure, nor is it presumed in any particular relationship. Professor Gino dal Pont and Ken Mackie summarise the probate doctrine in this way:

Only actual coercion will invalidate a will. Persuasion, influence or indeed importunity is not sufficient—after all, a testator is ordinarily free to accept or reject persuasion—unless the testator is thereby prevented from exercising a free will.[12]

9.10       In the leading case of Wingrove v Wingrove, endorsed by Australian courts, Sir James Hannen P explained in his direction to the jury about the different kinds of coercion, in terms that may be particularly pertinent to older persons:

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage or illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion though not actual violence.[13]

9.11       Undue influence is a difficult matter to establish in the probate context, particularly as the onus of proof lies upon the person who alleges undue influence.[14] In its 2013 report, Succession Laws, the Victorian Law Reform Commission (VLRC) observed:

The main problem with probate undue influence is that it has been too difficult to prove. This may lead to the Court upholding a will that does not in fact reflect the will-maker’s true intentions. This is particularly concerning given the ageing population and increasing vulnerability of older people making wills. As the population ages, there may be an increasing number of people who, despite having testamentary capacity, are vulnerable to pressure from relatives, caregivers and others.[15]

9.12       In Nicholson v Knaggs, Vickery J made observations about the degree and nature of pressure, particularly as it relates to the ‘vulnerability and susceptibility’ of the individual.

The key concept is that of ‘influence’. The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independence and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle.[16]

9.13       Vickery J also commented about the standard of proof:

The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.[17]

9.14       The VLRC suggested that, following Nicholson v Knaggs, undue influence may now be easier to prove in Victoria.[18] Dal Pont and Mackie also point to New Zealand authority where the facts did not show ‘coercion in the accepted sense of the word’, which, together with Nicholson v Knaggs, may represent ‘the developing trajectory of judicial opinion’ and ‘herald some (limited) convergence between common law and equitable concepts of undue influence’.[19]

Suspicious circumstances

9.15       The requirement of knowledge and approval of the contents of a will is a separate probate element from establishing that a person had the requisite ‘testamentary capacity’. It must be established that the testator knows that the document being signed is their will and that it deals with their property. Where a will benefits someone completely unrelated to the testator, probate calls for greater scrutiny to ensure that the testator had the appropriate knowledge and approval of the contents of the will. Justice Hallen explained that where knowledge and approval of a will is challenged, there is generally a two-stage process:

The first stage is to ask whether the circumstances are such as to ‘excite suspicion’ on the part of the court. If so, the burden is on the propounder of the will to establish that the deceased knew and approved the contents of that will. If the circumstances do not ‘excite suspicion’, then the court presumes knowledge and approval in the case of a will that has been duly executed by the deceased who had testamentary capacity.[20]

9.16       The kinds of matters that ‘excite suspicion’ include:

the circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the will, generally, seems to make testamentary sense.[21] 

9.17       While circumstances that may be raised to suggest undue influence do not satisfy the probate doctrine of undue influence, they may point to a lack of knowledge and approval. However, as Dal Pont and Mackie state, ‘this does not mean that undue influence is to be subsumed into suspicious circumstances; it is a separate issue that, where relevant, must be specifically pleaded’.[22]

[10]         For a detailed discussion of the inter vivos doctrine of undue influence, see Anthony Duggan, ‘Undue Influence’ in The Principles of Equity (Thomson Lawbook Co, 2nd ed, 2003) 393. The doctrine in relation to lifetime transactions is noted in ch 8 on family agreements.

[11]         For a consideration of the topic generally, see: Fiona R Burns, ‘Elders and Testamentary Undue Influence in Australia’ (2005) 28 University of New South Wales Law Journal 145; Fiona Burns, ‘The Elderly and Undue Influence Inter Vivos’ (2003) 23(2) Legal Studies 251; Fiona Burns, ‘Undue Influence Inter Vivos and the Elderly’ (2002) 26(3) Melbourne University Law Review 499; Pauline Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 Law Quarterly Review 617; Matthew Tyson, ‘An Analysis of the Differences Between the Doctrine of Undue Influence with Respect to Testamentary and Inter Vivos Dispositions’ (1997) 5 Australian Property Law Journal 38.

[12]         Gino Del Pont and Ken Mackie, Law of Succession (LexisNexis Butterworths, 2013) [2.39].

[13]         Wingrove v Wingrove (1885) LR 11 PD 81, 82–3. See Del Pont and Mackie, above n 12, 54 n 151.

[14]         In 1992 Phillip Hallen reported that in 50 years in New South Wales there had been no successful plea of influence with respect to a will: Phillip Hallen, ‘Undue Influence—What Constitutes?’ (1992) 66(8) Australian Law Journal 538. Since then, there have been a handful of cases: see Victorian Law Reform Commission, Succession Laws, Report (2013) 16.

[15]         Victorian Law Reform Commission, Succession Laws, Report (2013) 15.

[16]         Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [150].

[17]         Ibid [127].

[18]         Victorian Law Reform Commission, Succession Laws, Report (2013) [2.67].

[19]         Gino Dal Pont and Ken Mackie, Law of Succession (LexisNexis Butterworths, 2013) [2.45]. Citing Carey v Norton [1998] 1 NZLR 661.

[20]         Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 (17 November 2011) [258].

[21]         Ibid [259].

[22]         Gino Dal Pont and Ken Mackie, above n 19, [2.46].