National Crime What is undue influence in NSW probate law?
Undue influence in the context of wills means that the testator was coerced into making a will that did not reflect their true wishes. The testator's mind was overborne — they did not act as a free and voluntary agent. The classic statement of the principle was given by Sir James Hannen P in Wingrove v Wingrove (1885): the question is not whether the testator knew what they were doing, but whether the will expresses their own wishes — or the wishes of another person who has coerced them.
It is critical to distinguish undue influence from mere persuasion, advice, or legitimate family pressure. The law recognises that a testator may be influenced by family members, carers, or friends — that is part of ordinary human relationships. The threshold for undue influence is coercion: the testator's will must have been overborne. Influence becomes "undue" when it deprives the testator of free agency.
The Briginshaw standard in NSW
Allegations of undue influence are among the most serious that can be made in probate litigation. Under the principle in Briginshaw v Briginshaw (1938) — now reflected in s 140 of the Evidence Act 1995 (NSW) — the Court must take into account the gravity of the matters alleged when deciding whether the civil standard of proof has been met. This means the evidence of undue influence must be clear, cogent, and precise. Inferences drawn from circumstance alone will rarely be sufficient; direct evidence of coercion, while not always available, is highly persuasive.
Key NSW undue influence cases
The common law of undue influence in probate has been developed through a series of important decisions. Understanding these cases is essential to assessing the strength of a potential undue influence claim in NSW:
- Wingrove v Wingrove (1885) 11 PD 81: The foundational English authority, consistently applied in NSW. Sir James Hannen P distinguished testamentary capacity from undue influence — a testator may have capacity (know what they are doing and understand the effect) yet still be subject to coercion that overbears their free will. The central question is: whose will does the document express?
- Briginshaw v Briginshaw (1938) 60 CLR 336: Although not a probate case — it concerned adultery allegations in matrimonial proceedings — the High Court's statement of principle on the civil standard of proof where serious allegations are made applies directly to undue influence claims in NSW. Dixon J's formulation — that the seriousness of the allegation requires "clear, cogent, and precise" evidence — is now codified in s 140 of the Evidence Act 1995 (NSW).
- Nicholson v Knaggs [2009] VSC 64: Frequently cited in NSW. Vickery J comprehensively reviewed the law of undue influence in probate, confirming that the onus of proof rests on the person alleging undue influence throughout and that the test is coercion — not merely persuasion, advice, or even pressure falling short of overbearing the testator's will.
- Re R (Deceased) [1950] 2 All ER 117: An English decision adopted in NSW. The Court held that the question is whether the testator was "pressed" to make the will — not whether the pressure was reasonable or unreasonable from the testator's perspective. The key is whether the will represents the testator's own judgment.
- Veall v Veall (2015) 46 VR 123: The Victorian Court of Appeal considered the interaction between undue influence and suspicious circumstances. The Court confirmed that the propounder of a will may be required to dispel suspicions about the will's preparation even where the challenger does not plead undue influence. This has been influential in NSW practice.
- Nock v Austin (1918) 25 CLR 519: A High Court authority on the distinction between legitimate persuasion and coercion. The Court emphasised that a testator may act on advice, persuasion, or even importunity without being subject to undue influence — it is only when the testator's will is overborne that the will can be set aside.
Recognising the red flags of undue influence
Because undue influence is often exercised in private and the testator is no longer available to give evidence, proof frequently relies on circumstantial evidence. The following indicators — while not individually determinative — are commonly examined by the NSW Supreme Court in undue influence cases:
- The main beneficiary isolated the testator from family, friends, and independent advisers
- The testator was physically or emotionally dependent on the beneficiary for daily care
- The will was prepared at the beneficiary's instigation and the testator did not receive independent legal advice
- The will represents a radical departure from the testator's longstanding testamentary intentions
- The testator was elderly, frail, or vulnerable at the time the will was executed
- The beneficiary was present when instructions were given to the solicitor or when the will was executed
- The beneficiary managed the testator's finances, transport, and access to the outside world
- The testator expressed fear of the beneficiary or made statements suggesting they felt pressured
- There is a pattern of controlling or coercive behaviour by the beneficiary towards the testator
The role of the solicitor who prepared the will
When a will is challenged on the ground of undue influence, the solicitor who took instructions and prepared the will becomes a critical witness. The circumstances in which the instructions were given and the will executed are closely examined by the Court:
- Who gave the instructions? If the beneficiary — rather than the testator — gave instructions to the solicitor, this is a significant red flag. The solicitor should take instructions directly from the testator, ideally in private.
- Was the testator alone with the solicitor? The "golden rule" (from Kenward v Adams (1975)) is that a solicitor taking instructions for a will from an elderly or ill testator should see them alone — without the presence of any person who stands to benefit. Failure to do so, while not determinative, is a matter the Court will weigh.
- Did the solicitor assess capacity and voluntariness? The solicitor's file notes, attendance records, and contemporaneous correspondence are often the best evidence of whether the testator appeared to be acting freely and voluntarily. A thorough solicitor will record their assessment.
- Did the solicitor provide independent advice? Independent legal advice — explaining the effect of the will, the testator's options, and the consequences of the proposed dispositions — is strong evidence against undue influence. The absence of such advice may support the challenger's case.
- What do the solicitor's file notes reveal? In litigation, the challenger will usually subpoena the solicitor's file. The file notes may reveal who was present, what was said, whether the testator appeared hesitant or directed by another, and whether the solicitor had concerns.
If you are a solicitor preparing a will for a testator who may be vulnerable to influence, the steps you take — seeing the testator alone, recording your assessment, and providing independent advice — may later be decisive in upholding the will against challenge.
Proving undue influence in the NSW Supreme Court
To succeed in an undue influence claim in the NSW Supreme Court, the challenging party must establish:
- Coercion: That the testator's will was overborne — they did not act freely. This is the central element.
- Causation: That the coercion caused the testator to make the impugned will, or the specific provisions challenged.
- Evidence commensurate with the allegation: The evidence must meet the Briginshaw standard — clear, cogent, and precise.
The Court will examine all the surrounding circumstances: the testator's physical and mental condition, their relationship with the alleged influencer, the terms of the will and how they compare with earlier wills, the circumstances of the will's preparation and execution, and any statements made by the testator before and after execution.
Evidence gathering — practical steps for challengers
Undue influence cases are evidence-intensive. The Briginshaw standard demands more than suspicion — the evidence must be clear, cogent, and precise. Early and systematic evidence gathering is essential. The following categories of evidence should be identified and secured as early as possible:
- Medical records: The testator's medical records — particularly from the period surrounding the will's execution — may reveal vulnerability, cognitive decline, emotional dependence on the alleged influencer, or statements made by the testator about feeling pressured or controlled.
- Solicitor's file: The file of the solicitor who prepared the impugned will is often the single most important source of evidence. It may reveal who gave instructions, who was present, and the solicitor's own assessment. A subpoena or notice to produce will be required in litigation; early requests for voluntary disclosure may be productive.
- Earlier wills: A comparison between the impugned will and earlier wills can demonstrate whether the impugned will represents a radical departure from longstanding testamentary intentions — a significant circumstantial indicator of undue influence.
- Witness statements: Statements from family members, friends, neighbours, carers, and professionals who had contact with the testator around the time of the will's execution may provide evidence of the testator's state of mind, the nature of their relationship with the alleged influencer, and any statements they made about feeling pressured.
- Financial records: Evidence of financial dependence, control of the testator's finances by the alleged influencer, or unusual transactions around the time of the will's execution may support an inference of control and influence.
- Correspondence and communications: Letters, emails, text messages, and phone records may reveal the nature of the relationship, isolation of the testator, or statements by the alleged influencer about the testator's will or assets.
- Photographs and video: Where the testator's physical or emotional condition is relevant, photographs and video from the relevant period may be admissible and persuasive.
Evidence should be secured as soon as possible after a concern arises. Memories fade, documents are lost or destroyed, and witnesses may become unavailable. In particular, medical records should be requested promptly and the solicitor's file should be preserved — a letter requesting preservation of documents should be sent early to prevent routine file destruction.
Undue influence vs suspicious circumstances vs lack of capacity
These three grounds are often pleaded together but are legally distinct:
Undue Influence
The testator had capacity and knew the contents — but their will was overborne by coercion. The will reflects someone else's wishes, not the testator's. The challenger bears the onus of proof throughout.
Suspicious Circumstances
Circumstances surrounding the will's preparation and execution arouse the Court's suspicion. The evidential burden shifts to the propounder to prove knowledge and approval. This is a lower threshold for the challenger — they need only raise a suspicion; the propounder must then dispel it.
Lack of Capacity
The testator did not meet the Banks v Goodfellow test for testamentary capacity at the time of execution. The propounder bears the onus of proving capacity where the will is rational on its face; this may shift if circumstances suggest incapacity.
The equitable doctrine of undue influence vs probate undue influence
Lawyers and litigants must distinguish between two related but distinct doctrines of undue influence — one in equity and one in probate:
Probate Undue Influence
Applies to the validity of wills. The test is coercion — whether the testator's free will was overborne. The challenger bears the onus of proof throughout. There is no presumption of undue influence from a particular relationship. The remedy is that the will (or the impugned provisions) are refused probate. The standard of proof is the Briginshaw standard.
Equitable Undue Influence
Applies to inter vivos transactions (gifts, contracts, transfers). Certain relationships (solicitor–client, guardian–ward, religious adviser–devotee) give rise to a presumption of undue influence that shifts the evidential burden to the dominant party to justify the transaction. The remedy is rescission of the transaction or equitable compensation. This doctrine does not apply to wills.
This distinction is of great practical importance. A challenger who mistakenly assumes that a carer–testator or child–parent relationship gives rise to a presumption of undue influence in probate proceedings — as it might in equity — will fail. In probate, the challenger must prove coercion from the outset, and the standard is high. The equitable doctrine of presumed undue influence has no direct application to the validity of wills, though the facts that would give rise to a presumption in equity may be relevant as circumstantial evidence in probate.
Defending an undue influence claim in NSW
If you are the executor or a beneficiary defending a will against an undue influence challenge, your focus should be on demonstrating that the testator acted freely and voluntarily:
- Independent legal advice. Evidence that the testator received independent legal advice — from a solicitor who took instructions from the testator alone and explained the effect of the will — is the strongest available defence. The solicitor's file notes, attendance records, and evidence of their practice in taking instructions should be preserved.
- Consistency with longstanding intentions. If the impugned will is consistent with the testator's earlier wills or expressed intentions over a period of years, this is powerful evidence that the will reflects the testator's own wishes rather than the influence of another.
- Testamentary statements. Statements made by the testator before and after execution of the will — explaining why they made the dispositions they did — can be admitted as evidence of the testator's state of mind and intentions. These may be recorded in correspondence, solicitor's notes, or witness evidence.
- Rational explanations for dispositions. If the challenged dispositions can be explained by rational factors — for example, one child received a larger share because they provided years of care, or a particular beneficiary was in financial need — the Court is less likely to infer coercion.
- Absence of opportunity for coercion. Evidence that the alleged influencer had limited contact with or access to the testator in the period leading up to and including the will's execution weakens the claim of coercion.
- Medical evidence of autonomy. Medical records and expert evidence showing the testator was alert, independent, and capable of forming and expressing their own wishes are relevant to resisting a claim of coercion.
Defending an undue influence claim can be costly and protracted. Early assessment of the strength of the claim — and consideration of mediation or settlement where appropriate — is prudent. Even a successful defence may erode the estate's value through legal costs, and the Court retains a discretion to order that costs be borne by the estate rather than the unsuccessful challenger in appropriate circumstances.
Suspect undue influence in an NSW will?
Undue influence cases are challenging and evidence-intensive. Early investigation — including securing medical records, solicitor files, and witness statements — is critical. We can assess whether the indicators in your case are sufficient to support a challenge.
Costs in undue influence litigation
The costs of undue influence litigation in the NSW Supreme Court are a critical consideration for both challengers and defenders. Understanding how costs are typically dealt with can inform strategic decisions:
- The general rule in probate litigation. Unlike general civil litigation, where costs follow the event, probate litigation has a more flexible costs regime. The Court has a broad discretion and will consider all the circumstances, including the reasonableness of the parties' conduct and whether the litigation was caused or contributed to by the testator's conduct.
- If the challenger succeeds: Costs are typically ordered against the estate (and therefore borne by the beneficiaries in proportion to their entitlements), or against the propounder personally if the propounder's conduct was unreasonable. If the challenge succeeds because of the testator's own conduct (for example, by failing to obtain independent advice), the estate is likely to bear the costs.
- If the challenger fails: The usual rule is that the unsuccessful challenger pays the costs of the successful propounder. However, the Court may order that the unsuccessful challenger's costs be paid from the estate if the testator's conduct gave rise to reasonable grounds for the challenge, or if the proceedings were reasonably brought. This is an important protection for challengers who act reasonably on credible evidence.
- Indemnity costs: If the challenge was brought vexatiously, without reasonable grounds, or for an ulterior purpose, the Court may order the unsuccessful challenger to pay costs on an indemnity basis — meaning a higher proportion of the actual costs incurred rather than the standard costs order.
- Offers of compromise and Calderbank letters: As in all litigation, formal offers of settlement can have significant costs consequences. A party who unreasonably rejects a favourable offer may face adverse costs orders even if they succeed at trial.
Given the costs risks, early and realistic legal advice is essential. A solicitor experienced in probate litigation can assess the strength of the evidence, the likely costs exposure, and the prospects of recovering costs from the estate if successful — or the risk of paying the other side's costs if unsuccessful.
Frequently asked questions — NSW undue influence
Influence is a normal part of human relationships — a spouse may influence their partner's will, a carer may influence an elderly person's decisions. Influence becomes undue only when it crosses the line into coercion, depriving the testator of free agency. The test is whether the will expresses the testator's own wishes or the wishes of the person exercising the influence. Persuasion, advice, and emotional appeals — even persistent ones — do not generally amount to undue influence unless they overbear the testator's will.
No. A carer-beneficiary relationship is a red flag that warrants investigation, but it does not by itself prove undue influence. The challenger must show that the carer coerced the testator. However, where a carer receives a substantial benefit under a will they were involved in preparing, the Court will scrutinise the circumstances carefully. The absence of independent legal advice, isolation of the testator from family, and sudden changes to longstanding testamentary intentions are all relevant factors the Court will consider.
Unlike some other areas of equity (such as transactions between solicitor and client or guardian and ward), there is no general presumption of undue influence in probate law in NSW. The person alleging undue influence bears the onus of proof throughout. This distinguishes probate undue influence from equitable undue influence, where certain relationships give rise to a presumption that shifts the evidential burden. In probate, the challenger must prove coercion from the outset, and the standard is high — clear, cogent, and precise evidence commensurate with the seriousness of the allegation.
The most important categories of evidence are: the solicitor's file (showing who gave instructions, who was present, and the solicitor's assessment); medical records (showing vulnerability, dependence, or statements about feeling pressured); earlier wills (showing whether the impugned will is a radical departure); and witness statements from those who observed the testator's relationship with the alleged influencer. Direct evidence of coercion — such as the testator telling someone they felt forced — is highly persuasive. However, because undue influence is often exercised in private, circumstantial evidence is frequently relied upon. The evidence must meet the Briginshaw standard: clear, cogent, and precise, commensurate with the seriousness of the allegation.
Yes. The Court may find that only certain provisions of a will — rather than the entire will — were procured by undue influence. If the Court is satisfied that specific gifts or dispositions were the result of coercion but the remainder of the will reflects the testator's free intentions, the Court may refuse probate of the impugned provisions while admitting the remainder of the will to probate. This is sometimes called "partial invalidity." However, the Court will only take this approach if the impugned provisions can be severed without distorting the testator's overall testamentary scheme. If the undue influence affected the will as a whole, the entire will may be refused probate.
The Briginshaw standard does not change the civil standard of proof (balance of probabilities) — it affects how the Court applies that standard. Under s 140 of the Evidence Act 1995 (NSW), the Court must take into account the gravity of the matters alleged when deciding whether it is satisfied on the balance of probabilities. In practice, this means: (a) the evidence must be clear — not vague or ambiguous; (b) it must be cogent — logically probative and not speculative; (c) it must be precise — addressing the specific allegation, not general impressions. The more serious the allegation, the stronger the evidence must be before the Court will be satisfied. Allegations of coercion are among the most serious in probate, so the Court requires evidence of commensurate weight. Inferences drawn from circumstance alone may not suffice unless they are compelling.
Act immediately. First, seek legal advice from a probate litigation specialist to assess whether your concerns amount to arguable grounds for challenge. Second, if the advice supports it, lodge a caveat with the NSW Supreme Court Probate Registry to prevent probate from being sealed without notice to you. A caveat must be lodged before the grant is sealed — once probate is granted, the opportunity to caveat is lost. Third, begin gathering evidence: request the testator's medical records, identify witnesses, and take steps to preserve the solicitor's file. Fourth, work with your solicitor to investigate the grounds and, if warranted, commence proceedings. A caveat is temporary — you must either commence proceedings or withdraw the caveat before it lapses.
A solicitor who prepares a will may be liable in negligence to disappointed beneficiaries if the solicitor failed to take reasonable steps to ensure the testator was acting freely. This is an area of developing law. In Hill v Van Erp (1997) 188 CLR 159, the High Court recognised that a solicitor owes a duty of care to intended beneficiaries in certain circumstances. In the undue influence context, a solicitor who takes instructions from a beneficiary rather than the testator, fails to see the testator alone, or ignores obvious red flags may be found to have breached their duty. Solicitors should follow the "golden rule" — see the testator alone, record their assessment, and provide independent advice. If you are a disappointed beneficiary and believe the solicitor was negligent, you should seek separate legal advice about a potential professional negligence claim.