UK Trends and Developments Contributed by: Ros Bever, Claire-Marie Cornford, Helen Clarke and Ashley Hill, Irwin Mitchell
tested, continue to contribute to the upward trend in contentious estates. One of the grounds for contesting a will is to claim that the will is invalid as it was precured by “undue influence”. The test for “testamentary undue influ - ence” is largely set out in the High Court judgment of Edwards v Edwards & Ors [2007] EWHC 1119 (Ch). This prescribes that to prove undue influence the tes - tator’s free will must have been overborne by either coercion or fraud. Did the testator act as a free agent when making the will, or was there so much pres - sure on the testator that it caused them to change the instructions for their will? Undue influence is very commonly pleaded as a ground for contesting a will, but it is rarely pleaded in isolation as it is so hard to prove. Undue influence must be the most probable reason for the change in testamentary disposition for it to invalidate a will. The problem with proving undue influence is an evi - dential one, and the burden of proof is currently on the person who asserts the claim. The reality of undue influence is that it is likely to be carried out by one or more persons behind closed doors. This means that the party who is seeking to claim undue influence may have little evidence, as the testator had restricted or no contact with anyone apart from those exerting the undue influence. To remedy this problem, the Law Commission has proposed that the law in relation to undue influence should be changed and moved to a statutory footing, as part of a suite of proposals set out in the “Draft Bill for a new Wills Act”. This is the biggest proposed shake-up to the law of wills since the Wills Act 1837. Although the Bill is yet to reach parliament, the gov - ernment’s initial response to the Law Commission’s proposals has been positive. The Law Commission would like to shift the burden of proving testamentary undue influence. Factors that may lead to suspicion are those such as: • conduct towards the testator; • a relationship of influence with the testator; or • the circumstances in which the will was made.
Where the court directs, the person who is alleged to have conducted the undue influence must prove that the testator acted free of coercion for the will to be valid. This change in the law should help to protect the estates of the vulnerable from the effects of undue influence. The Role of Family Law in Asset Protection The Great Wealth Transfer also means that wealth protection tools such as prenups and their operation within the context of family law will take on an even greater significance. There has been a noticeable shift in public perception; they were largely perceived as the preserve of the wealthy, and as unromantic – promis - ing to love your partner “till death do you part” while also planning for the financial fallout of the break-up. There is no central record of the number of prenups that are agreed each year, but anecdotally as family lawyers the authors have seen an increase in the num - ber of people wanting to take precautions to secure their financial futures. It is also common for parents who are passing their wealth to their children to want to protect their financial legacies, and in the context of the wealth transfer, it seems inevitable that prenuptial agreements are going to become increasingly com - mon and normalised among millennials and Gen Zs alongside post-nuptial agreements. It will be crucial for both the giver and recipient to receive advice. The starting point is that nuptial agreements are not binding on the family courts. If a couple divorce and there is a court dispute about how their finances will be divided, the judge does not necessarily have to implement the terms of the prenup. The family court retains its discretion to make financial orders that it deems to be fair. However, the 2010 Supreme Court decision in Radmacher v Granatino [2010] UKSC 42 set the tone for how family judges will treat prenups, meaning that the courts should uphold nuptial agree - ments “freely entered into” by both parties with a “full appreciation of its implications”, unless it would be unfair to do so. Essentially, this means that as long as both parties understand what they are agreeing to and are not put under pressure, and provided the agree - ment is not unfair, the couple can be fairly confident that the terms of the agreement will be upheld.
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