27 FEBRUARY 2009

[2009] VSC 64

  • application to revoke probate – grounds – lack of testamentary capacity, undue influence and lack of knowledge and approval
  • severance of a legacy or bequest from a will where the legacy or bequest, rather than the will as a whole, was procured by undue influence
  • safeguard – common law for protection against impropriety in the will making process – principle of testamentary undue influence.

Essentially, two classes of equitable undue influence

  • actual undue influence
  • presumed undue influence.

Actual undue influence requires proof that it was in fact exerted in a manner which negatives the consent of the donor, grantor or transferor.

Onus of proof rests with the party alleging the undue influence.

Presumed undue influence in equity, however, does not require such proof.

Once the relevant relationship of trust and confidence between the parties is established,  rebuttable presumption that undue influence was exercised arises.

Burden then shifts to defendant to prove that the inter vivos transaction was free of undue influence and was the product of independent and fully informed intention.

Undue influence — onus of proof

Party making the allegation of undue testamentary undue influence bear the evidentiary onus of making good  the claim.  

Standard of proof

Not sufficient to establish merely a prima facie opportunity for its exercise.

Party making allegation – to demonstrate on the balance of probabilities such undue pressure brought to bear that the will can be said to have been the product of this conduct.

Where undue influence is alleged in will cases where the testator is dead, circumstantial evidence is usually the only evidence which can be advanced in support of the allegation.

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.

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:

  • strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

The exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases.

Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will.

There is no proper basis for applying a standard of proof which is higher than the criminal standard in a civil action where testamentary undue influence is alleged.

Where circumstantial evidence is relied upon, when confronted with a hypothesis which is consistent with undue influence, and a reasonable hypothesis which is not, has it been demonstrated on the balance of probabilities that the circumstances attending the execution of the will are inconsistent with the contrary hypothesis which is reasonably open? If the answer is “yes“, the alternative test will be satisfied, and undue influence proven.

Act of coercion” and undue influence

Undue influence in a probate suit, where it is invoked for the purpose of seeking revocation of probate of a will, has commonly been expressed in terms of “coercion“, resulting in the will of the testator being overborne.

However, “coercion” as used in this context has a wide meaning. It is not confined to conduct involving the persuasion of an unwilling person by some kind of threat or force.

Concept of “coercion“, in this context, appears to have had its modern origin in Boyse. The Lord Chancellor said on the subject:

  • Not all pressure which may be brought to bear on a testator is regarded as “undue“.
  • is an area of legitimate activity which is considered to be legally acceptable.

Example – Hall v Hall  Sir JP Wilde said:

  • To make a good will, a man must be a free agent but all influences are not unlawful.
  • Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like — these are all legitimate, and may be fairly pressed on a testator.
  • to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition.
  • must be shown that he or she has been coerced into making it..

The degree and nature of pressure which has the effect of invalidating the will making process will vary according to the particular vulnerability and susceptibility of an individual testator.

Ridge v Rowden:

  • [T]he essence of undue influence is that it goes beyond the permissible or legitimate, having regard to the degree of pressure brought to bear and the evident susceptibility of the person concerned to such pressure from factors such as mental frailty.

Key concept – “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, independent and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle.

The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event.

It may be achieved by the conduct of one person or several, whether acting in concert or quite independently.

Further, the influence need not be intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the testator.


Findings – undue influence exercised on Betty Dyke in relation to the 1999 will,

Question arises

  • whether a court, may sever the compromised provision or bequest, and admit the remainder of the will to probate.

Halsbury’s Laws of Australia state:

  • If the whole of the will is affected by undue influence, the will is invalid, but if only part of the will is affected, that part may be severed and the rest of the will admitted to probate.

Osborne v Smith. “undoubted law” that a Court of Probate may:

  • [I]n an appropriate case, grant probate in respect of a portion only of a document which has been executed as a will, omitting other portions as having formed no part of that to which the execution of the document really applied, as for example, where by fraud or mistake there has been included in the instrument words which in truth were not part of the testator’s will.

I am satisfied that the words “and TIMOTHY PETER KNAGGS, farmer, “both” and “or the survivor of them living at my death” contained in clause 5.1 of the 1999 will, should be excised and not admitted to probate.