Can I change my mothers will?

If you think your mother has been pressured or coerced into changing her will, you may be able to stop the estate being distributed as long as you can show the changes resulted fro

Can I change my mothers will?

If you think your mother has been pressured or coerced into changing her will, you may be able to stop the estate being distributed as long as you can show the changes resulted from undue influence.

What is undue influence?

Legally speaking, undue influence is any pressure that means the will-maker is unable to exercise their free will and judgement. It may come in the form of physical or emotional coercion, particularly where a will-maker is vulnerable in some way, for example due to illness. In cases where undue influence is claimed, the key question is whether the will represents the true wishes of the will-maker.

What can I do if I think my mother has been unduly influenced?

If you are concerned your mothers will is the result of undue influence the first step is to stop her estate being distributed.

Before distributing your mothers estate, the executors named in her will must apply to the court to be granted probate of the will. A grant of probate gives the executors the legal right to deal with property owned by your mother before her death. Before probate is granted, the executors cannot legally distribute the estate.

If probate has not yet been granted, you can lodge a caveat. A caveat will prevent the executors from applying for probate without notifying you. Your lawyers will then have an opportunity to argue in court that probate should not be granted, on the basis that the will is invalid because your mother was unduly influenced.

What do I need to prove to show undue influence?

The legal test for undue influence is whether:

-  influence led to the making of the will; and

-  the influence was undue in the sense that the will was not the result of the free exercise of the testators independent will.

It is important to keep in mind that it is acceptable for your sister to have tried to persuade your mother to leave more to her, or to have appealed to your mothers goodwill and affections, as long as the final decisions were left to her.

What happens if the court decides my mothers will resulted from undue influence?

If the court finds that your sister unduly influenced your mothers will and therefore refuses to grant probate, an earlier will made by your mother will apply. If your mother does not have an earlier will, her estate will be dealt with according to the laws of intestacy.

Undue influence in Green v Green

In the case of Green v Green [2016] NZCA 486, Maryanne Green succeeded in having her fathers will declared invalid because it resulted from undue influence by her brother, John Green.

Hugh Green was a successful businessman. For most of Mr Greens life, Maryanne was the only one of his children to work closely with him in his businesses. Maryanne understood that she would take over her fathers businesses after his death. However, this changed when Mr Green was diagnosed with terminal cancer. He removed Maryanne from control of the businesses and replaced her with John and two other people. Mr Green also made a new will appointing John as one of the executors of his estate.

The court agreed with Maryanne that John had unduly influenced Mr Greens new will, stating that Mr Green was vulnerable to Johns influence due to:

-  his age and illness;

  • -  frequent fatigue;
  • -  problems with his short-term memory;
  • -  his close emotional bond with John; and
  • -  the amount of time the two spent together.

John knew Mr Green was vulnerable and overpowered his independent will by driving the agenda and causing things to happen in relation to his fathers businesses and will. As a result of finding that John unduly influenced Mr Green, the court declared the will invalid.

For more information about wills and undue influence, contact Morris Legal.GET IN TOUCH

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