Wills must be voluntary, made without duress or undue influence

One of the most important functions of a solicitor when making a will for somebody is to ensure that the person is capable of doing so. This is referred to as the person having the “capacity” to make a will.

The law presumes a will to be valid, unless it can be proved otherwise.

The person making the challenge must show that the person who made the will did not understand that he or she was making a will, that he or she did not know the extent of his or her estate or how he or she wished to dispose of it.

Where a challenge is made, it is usually on the basis that the person suffered from a mental illness such as dementia, or was under the influence of a substance or person at the time the will was made.

The crucial factor here is the capacity of the person at the time the will was made, and not before or after. But it is important to note that simply because an individual has a form of mental illness or disease does not mean that he or she lacks the capacity to make a will.

The statutory formalities provide that the person making the will must make a will voluntarily.

There are two types of external pressure which can form the basis of a valid challenge to a will, namely duress and undue influence.

Duress involves a threat of physical harm or coercion exerted upon the person to cause them to sign a will, whereas undue influence involves a person being coerced into making the will, and as a result, the will does not represent an expression of their free will.

But no physical force or threat thereof is necessary to prove undue influence.

If a will is declared to be invalid under either of these claims by the court, the will shall be set aside, with any previous will being deemed to be the valid and binding will.

If there is no previous will, the estate will be divided accordingly to law.

There is a presumption in law of undue influence in circumstances where the elderly person is relying heavily on carers due to age, frailty or illness.

If a person has been pressurised or bullied into writing their will in a certain way, then it is possible that the will may be declared invalid.

A challenge to a will on this basis is reasonably rare, and will be based on experienced legal advice.

Duress and undue influence can occur commonly where vulnerable, elderly people may rely heavily on someone such as a relative or carer to help them every day.

In these scenarios, the elderly person can be coerced into leaving their estate to that person.

In 2011, a Ms Murphy from Kildare passed away from cancer. She left the entire of her estate to her long-term best friend. The estate had a value in or around €283,000 at her date of death, which included an apartment.

Ms Murphy was an unmarried lady with no children. Her sisters contested her will in the High Court, and asked the court to declare the will invalid, claiming Ms Murphy signed it in circumstances of duress and undue influence. The executors of the estate denied the claims, saying the late Ms Murphy was of sound mind when she made the will.

Nothing in the evidence, including that of one of the sisters, suggested Ms Murphy was other than “completely lucid, rational and coherent at all times during that day she made the will”. The medical evidence from her treating doctor put the matter “beyond doubt”.

There was evidence Ms Murphy’s best friend was a long-standing friend. Counsel for the estate said there is nothing to stop a single person “deciding to make a bequest of everything she owns to someone she described as her best friend”. No evidence of duress or undue influence had been presented, only innuendo, counsel said.

The High Court declared the disputed will of Ms Murphy — who drew it up a week before she died — to be valid. The judge was satisfied the best friend was “a close and valued friend” of Ms Murphy. The judge said, “suffice it to say there is nothing irrational about the contents of the will of the deceased”.

The judge declared that the will was valid, and that the late Ms Murphy’s estate should be administered in accordance with her wishes.


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