Undue Influence in Wills and Lifetime Gifts

What Undue Influence Means

Undue influence concerns whether the person made the disputed decision freely. Affection, gratitude and persuasion can explain a generous gift or an unequal will. The question is whether another person’s influence displaced the decision-maker’s own wishes.

Actual undue influence is proved through evidence of what happened in the particular transaction. Presumed undue influence starts with a recognised relationship, or a proven relationship of dependence and influence, combined with a transaction calling for explanation. The recipient must then establish that the transaction was freely made.

The High Court explains these equitable principles in Thorne v Kennedy [2017] HCA 49, particularly paragraphs 30 to 40. Those principles govern lifetime dealings. A lawyer challenging a will must apply the probate test described below.

Undue Influence in Wills

Undue influence in a will requires coercion that overbears the will-maker’s free choice. The person alleging undue influence carries the burden of proof. A relationship of trust does not create the equitable presumption used for lifetime gifts.

The foundational authority is Boyse v Rossborough (1857) 6 HLC 2. In Bridgewater v Leahy [1998] HCA 66, the High Court distinguishes probate coercion from equitable undue influence. Understanding a document does not answer whether a lifetime transaction was freely chosen.

The Australian will case Wehbe v Giotopoulos [2023] NSWSC 827 applies the coercion test and cites Boyse. It confirms that persuasion or appeals to gratitude invalidate a will only if they overpower the will-maker’s choice. An opportunity to influence someone, or a result the family dislikes, does not establish that effect.

Successful claims are uncommon because coercion often happens privately and the will-maker cannot give evidence after death. Suspicious circumstances must establish the required interference with free choice. The Victorian Law Reform Commission’s succession report discusses successful claims, including Nicholson v Knaggs [2009] VSC 64.

In Nicholson, Betty Dyke depended heavily on Denise Knaggs, her principal carer, but disliked Denise’s husband Tim. Hill Legal’s account of the case explains that Denise phoned the solicitor to have Tim included as a beneficiary. Tim had provided little care, and his inclusion conflicted with Betty’s longstanding hostility towards him. The court found undue influence behind his inclusion and severed his interest from the 1999 will. Those findings concerned how this particular gift entered the will, beyond Betty’s dependence on a carer.

A useful distinction is between a carer receiving a generous legacy after years of care and a carer threatening to withdraw necessary care unless named beneficiary. The first fact permits an explanation based on gratitude. Evidence that the threat caused the will would support the second allegation. These are hypothetical examples, not findings about a particular estate.

What a Probate Caveat Does

A caveat against probate prevents a grant proceeding in the ordinary way while a person with a relevant estate interest raises an objection. It preserves the opportunity to contest validity before the grant. It does not decide whether undue influence occurred or recover a lifetime transfer.

The caveator must identify their interest and maintain the objection under the applicable state procedure. A caveat’s nominal duration does not give the caveator that whole period to ignore a notice or court direction.

Jurisdiction	Duration and response	How It Can Be Challenged
New South Wales	A caveat lasts six months. Serve known applicants or potential applicants and substantiate the relevant probate interest.	The applicant can seek an order that the caveat cease. Contested proceedings can require an appearance and pleadings.
Victoria	A caveat ordinarily expires after six months. After the Registrar’s notice of an application, file and serve grounds of objection within 30 days, unless a judge orders otherwise.	A summons for directions brings the dispute before the court. A fresh caveat after notice-based expiry does not revive an objection to that application.
Queensland	A caveat lasts six months and can be renewed. After the Registrar’s notice, file and serve the notice to support it within the stated period, no later than eight days.	An applicant can seek removal for insufficient evidence of an interest or doubt about the grant. A court-directed proceeding must begin within the time ordered.

For NSW, the authority is Part 78 of the Supreme Court Rules 1970 and the court’s contested-proceedings guidance. Victoria’s procedure is in Order 8 of the Supreme Court (Administration and Probate) Rules 2023. Queensland’s procedure is in rules 624 to 626 of the Uniform Civil Procedure Rules 1999.

Undue Influence in Lifetime Gifts and Contracts

Lifetime gifts and contracts can be set aside for actual or presumed undue influence in equity. Solicitor and client is a recognised relationship, as is physician and patient. Guardian and ward is another recognised category. The direction of influence matters. An adult child caring for an older parent does not automatically establish a presumption merely because they are related.

Outside recognised categories, evidence can establish that one person depended on another who exercised influence over them. Relevant facts include who managed daily finances, arranged advice and controlled access to information. The transaction must also call for explanation in that relationship.

In Johnson v Buttress (1936) 56 CLR 113, an illiterate man transferred his home, substantially his only asset, to a person he trusted. He had no independent advice. The High Court upheld the setting aside of the transfer because the relationship raised a presumption that the recipient had not rebutted.

To rebut a presumption, the recipient must show that the gift or agreement was the donor’s free, informed act. Advice from an independent lawyer can support that conclusion. Evidence must establish the donor’s understanding of the transaction and its consequences, together with freedom to choose.

Independent advice is not automatically decisive. In Thorne v Kennedy, the woman signed financial agreements despite independent advice against signing. The majority found actual undue influence in the circumstances of dependence and pressure. A signed advice certificate cannot replace evidence about whether the person could make a free decision.

The separate comparison of undue influence, unconscionable conduct and duress explains their different requirements. If the dispute also concerns whether a transfer was a gift or a loan, examine the presumption of advancement.

Signs of Undue Influence in Financial Records

Financial records can show a change in spending or transfers that coincides with the alleged influencer’s involvement. Compare the disputed period with earlier years, including the person’s established gifting habits. Examine the following signs alongside the explanations for each payment.

• Transfers to the carer or beneficiary begin soon after they move in or take control of financial administration.
• Large payments depart from the person’s lifelong spending or gifting pattern.
• Repeated cash withdrawals appear after another person starts assisting with banking.
• Payments leave too little for the person’s ordinary living or care costs.
• A claimed reimbursement has no matching expense in the available records.
• Transfers continue close to the making of a disputed will, alongside evidence of pressure or isolation.

A year-by-year categorised ledger makes the comparison visible. Separate ordinary living costs from gifts and transfers to the disputed recipient. Include account balances and retain each transaction’s source statement reference. Compare equal periods and distinguish transfers between the person’s own accounts from money leaving their ownership.

In a hypothetical estate, annual gifts to family total $2,000 in each of the three years before a carer arrives. Payments to the carer then total $40,000 over the following year. All amounts are Australian dollars. The ledger shows a change to investigate. Care invoices, repayment records or earlier written intentions might explain it.

FinTrace saves lawyers and forensic accountants hours of statement conversion and review by producing a searchable, categorised ledger and a readable findings report. Its analysis clearly flags suspicious transactions and unusual transfers. Each finding gives the source PDF filename and page, so the supporting evidence is already at hand.

Pre-death transactions can support a probate caveat by placing the alleged relationship and disputed will in a financial chronology. They are circumstantial evidence of possible influence. A bank transfer does not record a threat or show what the deceased wanted when signing the will. Undue influence and lack of testamentary capacity are often pleaded together, but each requires evidence directed to its own legal ground.

Proving or Defending a Claim

Proving or defending undue influence requires a chronology that connects the disputed act to the person’s actual freedom to decide. Start with the will or transfer being challenged. Identify who allegedly exercised influence and how that conduct affected this particular decision.

For a will challenge, gather the drafting lawyer’s file, earlier wills and evidence from people who observed the will-maker. Preserve messages recording pressure, instructions or reasons for the changed disposition. Place financial transactions beside those events. Record who attended meetings and whether the lawyer took instructions privately.

For a lifetime gift, obtain the transfer documents and contemporaneous explanation for the gift. Examine the donor’s reliance on the recipient and their understanding of what they gave away. Independent advice records and evidence of a genuine opportunity to refuse help address the presumption where it arises.

A person falsely accused of undue influence can use the same chronology to show a freely made gift. Earlier expressions of intention, private instructions to an independent lawyer and consistent gifting behaviour can support that defence. Receipts can explain payments characterised as suspicious transfers. Preserve original messages and complete records, including evidence that cuts against your preferred account.

Separate the evidence of influence from the evidence of generosity. Prepare each allegation around the applicable legal test, then identify the witness or document supporting every disputed step. That gives you a basis to maintain a probate objection, seek relief over a lifetime transaction or advise that the evidence supports a voluntary decision.