Edwards v Edwards & Ors

A testamentary gift is invalid for undue influence where coercion or fraudulent calumny has overborne the testator’s free judgment. No presumption of undue influence arises merely from a testamentary disposition. The person alleging it bears the burden of proof and must produce compelling evidence, on the balance of probabilities, inconsistent with any other reasonable explanation.

Coercion includes pressure that causes a vulnerable testator to yield for a quiet life, rather than persuasion that convinces the testator’s judgment. Fraudulent calumny requires dishonest aspersions against a natural beneficiary, made knowing they are false or without caring whether they are true. The central question is whether the testator acted as a free agent.

The claimant challenged his mother’s will of 10 October 2001, which left her entire net estate to his brother, Terry. Her earlier will of 16 July 1990 had provided for a legacy to the claimant’s son and an equal division of the residue between her three sons.

Testamentary capacity and knowledge and approval were admitted. The claimant alleged that Terry, assisted by David Morris, procured the later will through undue influence and false allegations that the claimant and his wife had taken money and possessions. The court had to decide whether the deceased’s exclusion of the claimant and her grandson represented her free judgment.

1. Judgment for the claimant. Lewison J pronounced against the will of 10 October 2001 and in favour of the will of 16 July 1990.

2. There is no presumption of undue influence in relation to a testamentary disposition. It is a factual question. The person alleging it bears the burden of proof and, although the civil standard applies, must establish the allegation by compelling evidence inconsistent with another reasonable explanation.

3. Undue influence may arise through coercion or fraud. Coercion is pressure that overbears the testator’s volition without persuading the testator’s judgment. It is distinct from legitimate persuasion or appeals to affection or pity. A vulnerable, physically weak or ill testator may be more readily overborne; sustained drip-drip pressure may have that effect.

4. Fraudulent calumny arises where a person poisons a testator’s mind against a natural object of bounty by dishonest aspersions. The maker must know that the allegations are false or be indifferent to their truth. An objectively false allegation honestly believed to be true does not alone establish that ground.

5. The deceased was physically frail, grieving, vulnerable and frightened of Terry. The judge rejected the alleged explanations for the radical change in her will. The accusations that the claimant and his wife had taken money or possessions were false and had been fed to her by Terry or Mr Morris. Her stated reason that Terry had provided all her care was also plainly untrue.

6. Terry had motive and opportunity. He and Mr Morris isolated the deceased from the claimant and his wife, opposed care arrangements, and influenced the circumstances in which instructions for the new will were given. The judge found that Terry deliberately poisoned her mind with untruthful accusations, with Mr Morris’s assistance, and thereby overbore her discretion and judgment. She changed her will by doing as she was told, rather than as a free agent.

not stated in the judgment.