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Fear, Force and Fraud

If a Will is written by a person as a result of force, fear or fraud it will not be classed as the act of the testator and will not be accepted by probate. When a person dies it is common for an aggrieved beneficiary to raise issue relating to the circumstances under which the document was made. The most common issue is capacity but occasionally issues also arise relating to undue influence. A person who alleges one of these factors must prove it. There are no legal presumptions in favour of the person alleging one of these factors. There is little authority available to assist where force or fear is suspected but where it can be proved that a Will was made only because the testator was being injured or threatened with injury then it will not be admitted to probate. Fraud is defined as something which misleads a testator. This could be where false representations are made as to the character of someone else which could induce them to revoke gifts or exclude people from their Will. The oldest authority on this is Giles v Giles [1836] in which Lord Langdale said “a legacy given to a person in a character which the legatee does not fill, and by the fraudulent assumption of which character the testator has been deceived, will not take effect”. Where you take instructions from a client and have any suspicions that they may be influenced by any of these factors it is important that you satisfy yourself that the instructions truly emanate from the testator. Make detailed file notes about any suspicions and assurances from the client, this is especially important where someone is being excluded from the Will as it is in these circumstances that a challenge is likely to arise.

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