“Her will was overborne”: approaches to undue influence

In a landmark ruling in July this year, the Family Court held that a settlement agreement should be set aside on the basis that the wife’s free will when entering the agreement had been “overborne” by a sustained pattern of “undue pressure” exerted on her by her husband (PN v SA [2025] EWFC 141).

The legal concept of 'undue pressure' as a vitiating factor in the context of nuptial agreements shares a conceptual root with that of 'undue influence' in relation to testamentary dispositions. While both doctrines are concerned with the erosion of a person’s free will when making and, crucially, documenting significant financial decisions, recent case law has highlighted some notable differences in the judicial treatment of these concepts between the Family and Chancery Divisions.

Undue influence

Developed over more than a century of case law, undue influence is one of several grounds on which the validity of a person’s will may be challenged, along with (ii) failure to comply with the proper formalities, (iii) lack of testamentary capacity, (iv) want of knowledge and approval, and (v) fraud/forgery.

It carries a high evidential threshold, requiring demonstrable proof that the testator's own volition was overpowered either by coercion, in the sense that the testator’s will was overborne, or by fraud (Re Edwards [2007] WLTR 1387). As such, undue influence is commonly considered by practitioners to be one of the most difficult grounds on which to succeed for setting aside a will.

This approach is evident in the recent cases of Copley v Winter [2023] EWHC 1712 (Ch), Jones v Jones [2023] EWHC 1457 (Ch) and Rea v Rea [2024] EWCA Civ 169, discussed further below, where the courts emphasised the need for robust evidence of manipulation and domination of the deceased before that person’s testamentary dispositions could be set aside.

Differing approaches between the Chancery Division and Family Division

1. Evidential threshold

The Family Court in PN v SA [2025] EWFC 141 said that for the settlement agreement to be vitiated the wife must demonstrate that her free will was “overborne by her husband exercising undue pressure or influence over her”. Not least because of semantics, this bears obvious parallels with the evidential requirement for the claim of undue influence, where it must be shown that the testator was subjected to “pressure […] so exercised as to overpower the volition without convincing the judgment” (Hall v Hall [1868]).

Considering all the evidence, the Family Court in PN v SA found that the threshold for undue pressure had been met with particular reference to the wife’s “emotional state”, the “power imbalance in the parties’ relationship” and the fact the husband had sought to isolate his wife from her trusted lawyer.

By contrast, the comparatively stringent burden of proof for establishing undue influence when challenging a will was reaffirmed in Re Edwards, where the judge held that it is not enough for the facts of a case simply to be “consistent” with a hypothesis of undue influence; instead, the judge set the bar extremely high, declaring that the facts must be “inconsistent with any other hypothesis”.

In Copley v Winter, the testatrix had made a will in January 2017 in which she left a plot of land to her friend, the Defendant. In January 2019, while suffering from terminal cancer and grieving the recent death of her long-term partner, the testatrix executed a new will in which she instead left the plot of land to the Claimant.

The Chancery judge found that there were multiple indicators of undue influence, including the testatrix’s emotional vulnerability and worsening health, that she was taking extremely strong pain medication (possibly even on the day of signing the 2019 Will), and the fact that the Claimant had been the person to arrange for the testatrix to meet with her solicitor to change her Will, rather than the testatrix herself. The judge also found that the Claimant had lied in her evidence such that her testimony on other matters was “tainted”.

Notwithstanding that the facts of the case were relatively stark and therefore potentially consistent with undue influence, the judge ultimately found that the 2019 will could not be set aside on that basis and the claim was dismissed. When contrasted with the fact pattern in PN v SA, the differing approaches to the evidential threshold between the two court divisions seems significant.

2. Vulnerability

The wife’s vulnerability was key to the Family Court’s ruling of undue pressure in PN v SA. On the face of it, the wife in PN v SA was an extremely wealthy woman in her late forties, in good health, and with access to high-quality legal advice. Having reviewed all the evidence, however, the Court found that she was in fact “vulnerable and isolated”, particularly as a result of her emotional and financial “dependence” on her husband and her husband’s “dominant position in the relationship”.

Compare Rea v Rea [2024] EWCA Civ 169, where the Court of Appeal overturned the High Court’s finding of undue influence. In that case, the testatrix had executed a will in 1986 which divided her estate equally between her daughter and three sons. By 2015, the testatrix was a wheelchair-bound octogenarian and suffering with multiple serious health issues. That year, she executed another will that left her South-London house (which comprised the majority of the value of her estate) exclusively to her daughter who had been living with her as her carer.

Following her mother's death in 2017, the daughter brought an application seeking to propound the 2015 Will rather than the 1986 Will.  The brothers challenged the validity of the 2015 Will on the basis of undue influence, among other grounds. While the Court in the first instance found in favour of the daughter, the matter was then readmitted to the High Court due to procedural problems at trial which had meant that the daughter had not been cross-examined on several issues.

When the retrial took place, the second High Court judge made a finding of undue influence, emphasising the testatrix’s “frailty and vulnerability” in contrast to her daughter’s “forceful personality” and “forceful physical presence” and finding that the facts were “consistent only with [the daughter] having procured the making and execution of the 2015 will by the exercise of undue influence over her mother". However, the brothers’ success was short lived because the daughter’s counsel then appealed the High Court judgment on the basis that the evidence before the court did not actually satisfy the requirements to establish undue influence, which ultimately led to the Court of Appeal finding in the daughter’s favour, overturning the High Court’s judgment and dismissing the undue influence claim.  

Indeed, while the Court of Appeal agreed with the High Court’s conclusions that (i) the testatrix was frail and vulnerable, (ii) the daughter was an argumentative and forceful person, and that (iii) the testatrix had been entirely dependent on her daughter, this was ultimately not enough to prove undue influence in the context of a testamentary disposition.

3. Available evidence

Essential to the Family Court’s finding of undue pressure in PN v SA were the contemporaneous WhatsApp messages between the wife and the husband, and between the wife and third parties, that were produced as evidence before the Court. The oral evidence given by the wife during the trial was also persuasive.

This illustrates the comparative practical challenges of proving undue influence in will disputes where the testator is not alive to give evidence about the coercive behaviour that they may (or may not) have been subjected to.

Courts in the Chancery Division have considered this evidential limitation when determining undue influence cases. In Schrader v Schrader [2013] EWHC 466 (Ch), for example, the judge noted that “It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes when no-one is looking. That does not stop its being proved. The proof has to come, if at all from more circumstantial evidence”. 

In Jones v Jones [2023] EWHC 1457 (Ch), the Court applying Schrader v Schrader did find the will to be invalid even though there was no direct evidence of undue influence. However, the judgment hinged on the Court’s finding that the facts were inconsistent with any other hypothesis, affirming that it is still a very high bar.

The Law Commission's recommendations and the new Wills Bill

The Law Commission’s final report Modernising Wills Law (published 16 May 2025) discusses some of these issues that practitioners face when bringing undue influence on behalf of their clients and makes several recommendations for reform.

Indeed, the proposed Wills Bill (which, if passed, will be the first statutory update in this area since the nineteenth century) introduces a statutory basis for challenging a will on the ground of undue influence. As well as providing a broader definition than the current common law test for undue influence, the draft Bill provides for courts to be empowered to infer undue influence from circumstantial evidence, where there are reasonable grounds to suspect it. Additionally, the draft Bill provides that once a prima facie case of undue influence is established, the burden of proof should shift to the person seeking to uphold the will to demonstrate that undue influence did not occur.

Considerations for practitioners

• The Family Court in PN v SA placed particular emphasis on the special relationship of influence between couples and the power imbalances that may be at play. In undue influence claims, courts must grapple with a much wider gamut of family (and even non-family) relationships, such as sibling to sibling, parent to child, and even individual to third parties (such as a carer). In this context, it is important that will writers should not only be alert to the possibility of similar dynamics existing within all different types of relationship, but with a view to the recent Family Court decision, they should also pay particular attention to those who are married or cohabiting, where the fact pattern may be more likely to give rise to a 'coercive' relationship.
• The varying differences in judicial approaches to undue influence, not only across the Family and Chancery divisions, but also, as in Rea v Rea, between Chancery and Appeal courts, highlights the risks of challenging a will on the ground of undue influence and the inherent unpredictability of such claims.
• While fairness is an important consideration in financial remedy cases in the Family Court, the Chancery Division prioritises instead the protection of testamentary freedom and legal certainty - even where the outcome may appear to be inequitable for some ‘interested’ parties. Consequently, there is a gap currently between how the Chancery and Family courts approach the threshold of 'coercion' in relation to the creation of legal documents (be it testamentary affairs for the former or nuptial agreements for the latter).
• The recommendations of the Law Commission that have fed into the proposed Wills Bill aim to address this gap by striking a balance between preserving testamentary freedom and protecting vulnerable testators from exploitation.
• Notwithstanding that, could the recent case of PN v SA pave the way for a lowering of the evidential threshold in Chancery undue influence claims? While there may be good reasons for the difference in approach between the two divisions, it is clear that modern attitudes are becoming more alert to the issue of coercive dynamics that may be at play behind closed doors. We would encourage practitioners to 'watch this space'.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2025