Undue Influence in Wills — NSW & QLD Deep Guide

What undue influence means — and what it does not

In probate law, undue influence is a narrow, specific doctrine. It is not a general remedy for unfairness, and it is not satisfied by showing that someone had the opportunity to influence the will-maker or took advantage of a close relationship. The law requires proof of coercion — pressure that overbore the will-maker's free and independent will, so that the resulting will does not represent their true intentions but rather the will of the person who coerced them.

This is a high bar, and deliberately so. The law respects testamentary freedom — the right of every person of sound mind to dispose of their property as they see fit. Courts will not lightly interfere with a will that appears on its face to be properly executed, simply because family members are unhappy with the result.

Persuasion (Lawful)

A child explaining to a parent why they need more financial help than siblings
A carer respectfully suggesting they be remembered in the will
Family discussions about estate planning, even if emotional
Repeated requests or arguments — so long as the will-maker retains free choice
A spouse advocating for their interests in the couple's estate plan

Coercion (Unlawful — Undue Influence)

Threatening to withdraw care or contact unless the will is changed
Isolating the will-maker from family and independent advisers
Controlling all communication — including with the solicitor
Creating a climate of fear, dependency, or intimidation
Physically preventing the will-maker from seeing others or seeking advice

The distinction matters enormously in practice. Most undue influence claims fail not because undue influence did not occur, but because the evidence reaches only the level of persuasion — and persuasion, however persistent or unfair it may seem, is not enough. The court is looking for evidence that the will-maker was not a free agent.

Persuasion vs Coercion — where the line is drawn

The line between persuasion and coercion is not always bright. Courts consider the totality of the circumstances: the nature of the relationship, the vulnerability of the will-maker, the intensity and duration of the pressure, the will-maker's access to independent advice, and whether the resulting will can be explained by ordinary, benign motives. Key factors include:

The vulnerability of the will-maker. Age, illness, cognitive decline, grief, loneliness, and dependency all increase susceptibility to influence. A will-maker who is physically dependent on the alleged influencer for daily care is in a position of particular vulnerability.
The nature of the relationship. Was the influencer in a position of dominance or control? Did the will-maker fear the consequences of refusal? Was there a history of controlling or manipulative behaviour?
The intensity of the pressure. A single conversation, however insistent, is less likely to constitute coercion than a sustained campaign of pressure over weeks or months, combined with isolation and dependency.
Access to independent advice. Did the will-maker have the opportunity to speak privately with a solicitor? Was the influencer present during instructions? Did the solicitor assess capacity and record the will-maker's stated reasons?
The result itself. A will that departs radically from a long-standing pattern — disinheriting all children in favour of a new carer, for instance — raises questions. The more inexplicable the result by ordinary motives, the more the court will scrutinise the circumstances.

Case-pattern examples — recognising undue influence

While every case turns on its own facts, certain patterns recur in undue influence claims. These patterns do not, by themselves, prove undue influence — but they indicate the kind of factual matrix that may support a finding.

Pattern 1: The Isolated Elder

The will-maker is elderly, frail, and dependent on a single carer — often a relative, neighbour, or new acquaintance. The carer controls access: who visits, who telephones, what information reaches the will-maker. Family members are pushed away. Over time, the will is changed to benefit the carer substantially or exclusively. The will-maker had no independent advice.

Pattern 2: The Last-Minute Change

The will-maker, previously consistent in estate planning over many years, makes a new will within weeks or days of death — usually in hospital or a care facility. The new will dramatically favours one person who was recently present and involved. The timing, the vulnerability, and the departure from long-standing intentions all raise suspicion.

Pattern 3: The Controlled Process

The alleged influencer arranges the solicitor, is present throughout the will-making process, answers questions on the will-maker's behalf, and may even communicate the "instructions" to the solicitor directly. The will-maker never speaks to the solicitor alone. The solicitor's file notes are thin or absent.

Pattern 4: The Dependent Relationship

The will-maker is financially or emotionally dependent on the influencer — for housing, income, care, or companionship. The influencer makes clear (explicitly or implicitly) that continued support depends on the will being changed. The will-maker complies not out of free choice but out of fear of abandonment.

Pattern 5: The Serial Will Changes

A series of wills are made in quick succession, each increasingly favouring the influencer. The changes cannot be explained by changes in the will-maker's circumstances or relationships — only by the influencer's growing control. Each new will is made without independent advice.

Pattern 6: The Gatekeeper

The influencer controls all communication — intercepting mail, screening phone calls, limiting visits, and managing what information reaches the will-maker. Family members are told the will-maker "doesn't want to see them" when the will-maker has expressed no such wish. The influencer becomes the sole conduit of information.

Evidence section — what you need to prove undue influence

Undue influence cases are built on evidence — usually circumstantial, since direct evidence of coercion (a witness who heard the influencer threaten the will-maker) is rare. The following categories of evidence are commonly gathered:

All versions of the will and any codicils. The pattern of changes over time — who benefits, who is excluded, and when changes occurred — is arguably the single most important category of evidence. Obtain every known will.
Solicitor file notes and correspondence. The drafting solicitor's file is critical. Who attended conferences? Who gave instructions? Was the will-maker seen alone? Did the solicitor assess capacity? Are the notes detailed or perfunctory?
Medical records and assessments. GP notes, specialist reports, hospital records, and any cognitive assessments — particularly around the time each will was made. Evidence of vulnerability (dementia, delirium, depression, medication effects) is central.
Witness statements from family, friends, and carers. People who observed the will-maker's behaviour, the influencer's conduct, changes in access and communication, and the will-maker's expressed intentions before the influence took hold.
Records of the influencer's involvement. Bank records showing who managed finances, phone records, visitor logs at care facilities, and correspondence demonstrating control.
Timeline of key events. A detailed chronology showing will changes, hospitalisations, moves to new accommodation, relationship changes, and the influencer's increasing involvement — all correlated in time.
Evidence of previously expressed intentions. Earlier wills, letters of wishes, statements to family members or professionals about how the will-maker wanted their estate distributed — before the influence took hold.
Evidence of isolation. Records of denied visits, intercepted communications, changed phone numbers, and statements from people who were prevented from seeing the will-maker.

The high proof burden — Briginshaw and undue influence

Allegations of undue influence are serious. They assert that someone engaged in wrongful conduct — coercion that deprived a person of their free will in one of the most personal decisions they can make: the disposition of their property after death. Because of the gravity of the allegation, the civil standard of proof (balance of probabilities) is applied with particular rigour.

This is the principle from Briginshaw v Briginshaw (1938) 60 CLR 336, now reflected in s 140 of the Evidence Act 1995 (Cth) and corresponding state legislation. It does not change the standard of proof — it remains the balance of probabilities — but it requires that the evidence be clear, cogent, and precise. The more serious the allegation, the stronger the evidence must be before the court will be satisfied that it is proved.

In practice, this means:

Suspicion is not enough. A "feeling" that something was wrong will not satisfy the court.
Opportunity is not enough. The fact that someone could have influenced the will-maker does not prove they did.
Motive is not enough. Even a strong financial motive, without evidence of actual coercion, is insufficient.
The court will look for a coherent body of evidence that, taken together, supports the inference of coercion to the required standard.
Where the evidence is evenly balanced, the allegation will fail — the person alleging undue influence bears the burden.

This is why early, methodical evidence gathering is essential. You cannot wait and hope. You need to identify, preserve, and analyse the evidence before memories fade, documents are destroyed, and the opportunity to build a case is lost.

State notes — NSW vs QLD

Undue Influence in NSW

The doctrine of undue influence in probate is recognised at common law and is not separately codified in the Succession Act 2006 (NSW).
The person alleging undue influence generally bears the burden of proof — though in some circumstances, where the influencer was in a position of dominance and received a substantial benefit, inferences may shift the evidentiary burden.
The Briginshaw standard applies through s 140 of the Evidence Act 1995 (NSW).
Proceedings are heard in the Supreme Court of NSW, Equity Division — Probate List.
The probate exception on costs may apply — where the testator's conduct or vulnerability contributed to the litigation, costs may be payable from the estate rather than by the unsuccessful party.
A caveat may be lodged under Supreme Court Rules Part 78 to prevent probate being granted while undue influence is investigated.
NSW Trustee & Guardian may have relevant records if the will-maker was under their management or if they were involved in the will-making process.

Undue Influence in QLD

The doctrine of undue influence in probate is recognised at common law and is not separately codified in the Succession Act 1981 (QLD).
The person alleging undue influence bears the burden of proof, subject to the same principles about relationships of dominance and substantial benefits.
The Briginshaw standard applies through s 140 of the Evidence Act 1977 (QLD).
Proceedings are heard in the Supreme Court of Queensland.
s 10(2) of the Succession Act 1981 — the unique QLD requirement that the testator's signature be positioned at the foot or end of the will — may become relevant if the will's formal validity is also challenged.
s 24(2) — the lost will presumption: where a will known to have been in the testator's possession cannot be found after death, it is presumed destroyed with intent to revoke. This can be significant where an influencer is suspected of destroying an earlier, less favourable will.
Criminal Code s 488 — forging or uttering a forged will carries a maximum penalty of 14 years imprisonment. Where undue influence escalates to fabrication or forgery, criminal as well as civil remedies may be available.
QCAT has jurisdiction over enduring power of attorney disputes — where undue influence in will-making is accompanied by POA misuse, QCAT may provide a parallel pathway for reviewing the attorney's conduct.
The Public Guardian (QLD) may investigate where the will-maker's capacity and protection are in issue, particularly for living persons at risk of ongoing coercion.

Common pitfalls in undue influence claims

Assuming opportunity equals influence. Simply being present or having a close relationship with the will-maker does not prove undue influence. The evidence must show coercion.
Confronting the suspected influencer directly. This can trigger destruction of evidence, further isolation of the will-maker, or accelerated asset transfers before protective orders can be obtained. Do not alert the suspect without legal advice.
Waiting until after probate is granted. Challenging a will after probate is harder. Assets may have been distributed, making recovery difficult even if the will is later set aside. If you suspect undue influence, seek advice before the grant is made.
Relying solely on family suspicion. The court requires objective evidence — not just family members' beliefs about what happened. Unsupported suspicion will not satisfy the Briginshaw standard.
Overlooking capacity issues. Undue influence and lack of testamentary capacity often overlap. A comprehensive challenge may need to address both — the evidence for each is different but complementary.
Failing to preserve evidence. Solicitor files, medical records, correspondence, and financial records can be lost or destroyed. Act promptly to identify and preserve what exists.
Assuming the drafting solicitor will support the challenge. The solicitor who prepared the will may be a witness for the propounder — not for the challenger. Their file notes may contain evidence helpful to either side.

When to act — urgency in undue influence cases

Undue influence cases are not always urgent in the same way that asset dissipation cases are. But delay is still prejudicial:

Before probate is granted: You may be able to lodge a caveat preventing the grant, giving you time to investigate and gather evidence without the complication of distributed assets.
After probate is granted but before distribution: The will can still be challenged, and a grant of probate can be revoked. But the court will be reluctant to disturb a grant without strong evidence.
After distribution: Recovery of distributed assets is difficult. The court may still set aside the will and the grant, but tracing and recovering assets from individual recipients is complex and uncertain.

Suspect undue influence? Get advice before you act.

Undue influence claims require careful assessment of the available evidence, a realistic understanding of the Briginshaw standard, and a strategy that protects your position without alerting the suspected influencer prematurely. We can assess your matter, identify what further evidence is needed, and advise on the prospects of success.

Confidential Case Review Urgent Advice Before Probate Undue Influence Checklist

Frequently asked questions

A family provision claim accepts the will is valid but argues that adequate provision was not made for an eligible person (spouse, child, dependent, etc.). It is about fairness, not validity. An undue influence claim challenges the will itself — it argues the will does not reflect the testator's true intentions because their free will was overborne. The two claims can run alongside each other, but they are legally distinct with different evidence requirements and different outcomes.

Yes. Most successful undue influence cases are built on circumstantial evidence because direct evidence — a witness who saw or heard the coercion — is rare. The court will draw inferences from the totality of the circumstances: the relationship, the vulnerability, the opportunity, the result, and any pattern of controlling behaviour. The key is that the body of circumstantial evidence must be sufficiently clear and cogent to satisfy the Briginshaw standard. This is difficult but not impossible.

There is no fixed limitation period for challenging a will on grounds of undue influence — unlike family provision claims (generally 12 months from death). However, delay is prejudicial in several ways: evidence deteriorates, assets may be distributed, and the court may draw adverse inferences from the delay. Early action — ideally before probate is granted — is strongly recommended. If probate has already been granted, do not delay further.

Dementia and undue influence often overlap. A person with dementia is more vulnerable to coercion. However, the two challenges are legally distinct: lack of capacity means the will-maker did not understand what they were doing; undue influence means they understood but were coerced. If the will-maker lacked capacity, you may not need to prove undue influence at all — the will is invalid on capacity grounds alone. If the will-maker had fluctuating capacity (lucid intervals), the question is whether they had capacity at the specific time the will was made, and separately whether they were coerced during a lucid period. Both challenges should be considered together.

Disclaimer: This guide provides general information about undue influence in will-making under NSW and Queensland law. It does not constitute legal advice. The legal principles are complex and outcomes depend entirely on the specific facts and evidence of each case. You should obtain legal advice specific to your circumstances before taking any steps. Last reviewed: June 2026. Jurisdiction: New South Wales and Queensland, Australia.

Undue Influence in Wills — NSW & Queensland