Suspected Undue Influence — Warning Signs & Action Checklist

1. What to look for — warning signs of undue influence

No single sign proves undue influence, but the presence of multiple indicators — particularly in combination — warrants serious investigation. Tick off the signs you have observed:

• The testator has been isolated from family, friends, and independent advisers. Visits, phone calls, and correspondence are controlled or blocked.
• The testator is physically or emotionally dependent on the alleged influencer for daily care, transport, meals, or medication.
• There have been sudden or unexplained changes to the will — especially changes that substantially benefit the influencer or exclude long-standing beneficiaries.
• The influencer was present during solicitor visits, when instructions were given, or when the will was executed — and the testator had no opportunity to speak with the solicitor alone.
• The will is contrary to the testator’s long-standing intentions or previous wills. The testator had consistently expressed different wishes over many years.
• The testator displays fear, anxiety, or reluctance when the influencer is present — body language, tone, or expressions that suggest discomfort or coercion.
• The influencer controls access to the testator — deciding who can visit, screening phone calls, intercepting mail, and managing all external contact.
• There has been a rapid succession of wills within a short timeframe, each increasing the influencer’s benefit or further excluding family members.
• The testator was elderly, frail, unwell, or cognitively vulnerable at the time the will was made or changed.
• The solicitor who prepared the will was chosen or arranged by the influencer — not by the testator independently.

2. What to document — record everything

Contemporaneous records are powerful evidence. Write things down as soon as you observe them. Use a notebook or a secure digital file, and include dates wherever possible. The following should be documented:

• Timeline of will changes: When each will was made, what changed, who benefited, and who was excluded. Include approximate dates if exact dates are unknown.
• Who was present: Note who attended solicitor appointments, who was in the room when instructions were given, and who witnessed the will. Was the testator ever alone with the solicitor?
• Changes in behaviour: Record when the testator’s behaviour changed — becoming withdrawn, anxious, secretive, or unusually dependent on the influencer. Include what you observed and when.
• Statements made by the testator: Write down anything the testator said about feeling pressured, not wanting to change their will, being afraid of the influencer, or wanting to reverse the changes. Record the date, the context, and any witnesses to the conversation.
• Who arranged legal appointments: Note who contacted the solicitor, who drove the testator to the appointment, and who paid for the legal work. If the influencer arranged everything without the testator’s independent involvement, that is a significant red flag.

3. What to gather — documents and evidence

Gathering the right documents before you see a lawyer will make your initial consultation far more productive. The following materials are particularly important in undue influence cases:

• All versions of the will: The current will, any previous wills (including drafts), and any codicils. If you do not have copies, note where you believe they are held.
• Solicitor file notes: The solicitor’s notes of instructions, attendance records, and correspondence concerning the preparation and execution of the will. These can be requested after death by certain interested persons.
• Medical records: Records from the testator’s GP, specialists, and aged care providers covering the period when the will was made. These can show cognitive status, vulnerability, and capacity.
• Witness statements: Written accounts from family members, friends, neighbours, and carers who observed the testator’s relationship with the influencer and any concerning behaviour.
• Correspondence: Letters, emails, text messages, and social media messages between the testator and the influencer, the testator and family members, or the influencer and the solicitor.
• Records of who paid for legal fees: Bank statements, receipts, or invoices showing who paid the solicitor’s fees for preparing the will. If the influencer paid, this can be significant.
• Evidence of previous intentions: Letters, file notes, or earlier wills that show what the testator wanted before the alleged influence took hold. Statements from people the testator told about their intentions are also valuable.

4. What NOT to do — avoid these common mistakes

The period before a will is challenged is delicate. The wrong action can alert the influencer, allow probate to be granted unchallenged, or damage your legal position. Specifically, do not do any of the following:

• Do not confront the influencer. Confrontation may cause the influencer to destroy evidence, pressure other witnesses, or take steps to accelerate probate. Keep your concerns confidential and seek legal advice first.
• Do not alert the solicitor acting for the will. The solicitor who prepared the will under allegedly suspicious circumstances may be aligned with the influencer. Do not notify them of your concerns or request information without first obtaining legal advice.
• Do not destroy earlier wills. Earlier wills are critical evidence of the testator’s long-standing intentions. Even if an earlier will appears superseded, keep every version — they show the pattern of changes and the departure from prior wishes.
• Do not wait until probate is granted. Once probate is granted, challenging a will becomes significantly more difficult. Time limits apply, and assets may already have been distributed. Caveats can be lodged to prevent probate being granted while concerns are investigated.
• Do not assume it is too late. Even if probate has been granted, or if some time has passed, legal options may still be available. Do not give up without obtaining legal advice. The law provides pathways for late challenges in appropriate circumstances.

5. When to get legal advice

You should seek legal advice as soon as possible if:

• You have identified three or more warning signs from the checklist above
• The testator is still alive and you are concerned they are being coerced right now
• The testator has died and you believe the will was procured through undue influence
• Probate has not yet been granted and you want to preserve your ability to challenge the will
• You have been excluded from a will contrary to the testator’s long-standing promises or intentions

Undue influence cases are complex and evidence-intensive. A lawyer experienced in probate and estate disputes can assess the strength of your case, advise on the evidence you need, and take urgent protective steps — including lodging a caveat to prevent probate from being granted while your concerns are investigated. The cost of early advice is modest compared to the cost of losing the opportunity to challenge.

Frequently asked questions — undue influence checklists