Learning Outcomes
This article examines the circumstances in which a will or codicil may be declared invalid for duress, undue influence, or mistake, linking each doctrine to the SQE1 assessment objectives. It explains how to distinguish coercion from legitimate persuasion, clarifies why there is no presumption of undue influence in testamentary cases, and analyzes the burden and standard of proof when challenging a will. It explores the concepts of knowledge and approval and suspicious circumstances, showing how these interact with allegations of pressure or manipulation. It details different categories of mistake—execution, content, and legal effect—and reviews when a mistake leads to lack of knowledge and approval, invalidity, or eligibility for rectification under s.20 Administration of Justice Act 1982. It discusses the evidential value of attendance notes, draft wills, attestation clauses, and affidavits, and how courts evaluate vulnerability, isolation, and conflicting testimony. It presents typical problem-question patterns and validity outcomes, such as setting aside a will, restoring an earlier will, or falling back to intestacy, so that the material can be applied accurately to SQE1-style multiple-choice questions and practical case scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the validity of wills and codicils in the context of duress, undue influence, and mistake, with a focus on the following syllabus points:
- the legal requirements for a valid will or codicil, including the need for free and informed testamentary intention
- how duress and undue influence can render a will or codicil invalid
- the distinction between undue influence and legitimate persuasion
- the effect of mistake on the validity of a will or codicil, and the court’s power to rectify mistakes
- the burden and standard of proof for challenging a will on these grounds
- the role of knowledge and approval and suspicious circumstances in assessing validity
- practical and evidential issues (e.g., attestation clauses, affidavits) when propounding or challenging a will
- how to apply these principles to practical scenarios and exam questions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What must be proved to establish that a will is invalid due to duress?
- How does the law distinguish between undue influence and legitimate persuasion in the context of wills?
- What is the effect of a mistake in the drafting or execution of a will, and how can it be remedied?
- Who bears the burden of proof when alleging undue influence in a will dispute?
Introduction
A valid will or codicil must reflect the true, voluntary intentions of the testator. However, a will may be challenged and set aside if it was made as a result of duress, undue influence, or mistake. These factors undermine the requirement that a will is the free act of the testator. For SQE1, you must be able to identify when these issues arise, understand the legal tests for each, and apply them to practical scenarios.
The Wills Act 1837 prescribes formal execution requirements. Beyond formalities, the will must reflect free, informed intention: the testator must know and approve its contents. Where circumstances are suspicious (for example, a major beneficiary prepared the will), the court requires cogent proof of knowledge and approval before admitting the will to probate. Separately, coercive pressure or unlawful threats negate free agency and can invalidate the will altogether.
Key Term: will
A legal document by which a person (the testator) sets out how their property is to be distributed after death.
Duress and Undue Influence
A will or codicil must be made freely. If the testator’s free will is overborne by threats, coercion, or manipulation, the will may be invalid.
Duress
Duress involves unlawful threats or pressure that force the testator to make a will or codicil against their wishes. The pressure must be so severe that it destroys the testator’s free agency. The classic formulation is force or fear: physical injury or credible threats of harm leading the testator to execute a will they did not truly want to make. A will procured by such means is not regarded as the act of the testator and is refused probate unless pronounced valid in solemn form after the court hears all evidence and is satisfied it is nonetheless valid. If duress is proved, the impugned will is set aside, and succession falls back to an earlier valid will or, failing that, to intestacy.
Key Term: duress
Unlawful threats or coercion that force a person to act against their true wishes.
Evidence of duress is fact-sensitive. Courts look for proof of threats, intimidation, or violence tied to the will’s execution or change. Where a legacy is omitted or added because of threats, the court may restore the prior testamentary disposition.
Undue Influence
Undue influence is subtler than duress. It occurs when a person uses their position of trust or authority to overpower the testator’s freedom of decision, resulting in a will that does not reflect the testator’s true intentions. The influence must amount to coercion, not just persuasion. The test is whether the testator’s volition was overborne—whether they yielded to intolerable pressure rather than acted freely.
Key Term: undue influence
Improper pressure or manipulation that overcomes the testator’s free will, resulting in a will that reflects the influencer’s wishes rather than the testator’s.Key Term: coercion
Pressure so strong that it overcomes the testator’s volition, leaving them no real choice.
It is permissible to advise or persuade a testator, even robustly. But methods such as isolating a vulnerable testator, controlling access to friends or advisers, or persistently pressuring them when they are physically or mentally weak can cross the line into coercion. The court is more inclined to find undue influence when the testator’s vulnerability is evident.
No presumption of undue influence applies in wills (contrast lifetime gifts), so a challenger must prove actual coercion. The standard of proof is the civil standard (balance of probabilities), but allegations require clear and convincing evidence because they are serious and inherently improbable in many family contexts.
Not to be confused with undue influence, fraud can also invalidate a will. One form—often termed fraudulent calumny—occurs where a person poisons the testator’s mind against a natural beneficiary by dishonest allegations made knowingly or recklessly. The question remains whether the testator acted as a free agent; if they were deceived by falsehoods and the deception altered their testamentary dispositions, the will (or the relevant gift) may be set aside for fraud.
Distinguishing Persuasion from Undue Influence
Not all influence is undue. It is common and lawful for relatives or friends to try to persuade a testator to benefit them. The law only intervenes where the influence is so strong that the testator’s independent judgment is overpowered.
Examples of legitimate persuasion include:
- appealing to the testator’s sense of family, reciprocity, or gratitude without isolating or coercing them
- discussing financial need or merit in an open manner, leaving the testator free to accept or reject the request
- assisting with practicalities (e.g., transport to the solicitor) while ensuring the testator receives independent advice and is not pressured at the point of execution
Indicators suggesting undue influence include:
- isolating the testator from close family or advisors, or controlling their communications
- threatening withdrawal of care or housing unless changes are made
- dictating terms to the drafter and supervising execution in a way that displaces the testator’s free decision-making
- exploiting illness, cognitive decline, or dependency to secure testamentary changes
Burden and Standard of Proof
The person alleging duress or undue influence must prove it. There is no presumption of undue influence in wills (unlike lifetime gifts). The standard is the balance of probabilities, but the courts require clear and convincing evidence. Suspicious circumstances may prompt the court to require proof that the testator knew and approved the will’s contents; however, this is distinct from proving undue influence. In suspicious cases, the propounder of the will must dispel the suspicion by demonstrating knowledge and approval, often through solicitor evidence and attestation details. To prove undue influence, actual coercion must still be established by the challenger.
Worked Example 1.1
Scenario:
An elderly woman changes her will to leave her house to her carer, who has recently become her main companion. Her children allege the carer forced her to make the change by threatening to withdraw care.
Answer:
If the children can prove the carer made threats that overbore the testator’s free will (duress), or manipulated her to the point of coercion (undue influence), the will may be set aside. However, if the carer merely persuaded her, without improper pressure, the will is likely to be valid. The court will examine vulnerability, isolation, the timing and manner of the change, and the solicitor’s evidence. Attendance notes confirming independent advice and that the testator gave instructions alone are powerful evidence against undue influence.
Exam Warning
Allegations of undue influence are serious and difficult to prove. The courts require strong evidence of coercion, not just evidence that the will is unexpected or that the influencer had the opportunity to exert pressure.
Mistake
A will or codicil may also be invalid or require correction if it contains a mistake. Mistakes can arise in the drafting, execution, or understanding of the will. A mistake may lead to invalidity (for example, lack of knowledge and approval if the testator did not understand what they signed) or correction by rectification if statutory criteria are met.
Types of Mistake
- Mistake in execution: The testator signs the wrong document or is unaware they are signing a will. This can amount to lack of knowledge and approval and vitiate the will.
- Mistake in content: The will does not reflect the testator’s instructions due to a drafting error (e.g., a wrong figure or name).
- Mistake in legal effect: The testator misunderstands the effect of the words used—e.g., believing a clause has a different legal operation than it actually does.
Key Term: mistake (in wills)
An error in the drafting, execution, or understanding of a will or codicil that causes it not to reflect the testator’s true intentions.
These categories overlap with the separate requirement that the testator knew and approved the contents. Where a mistake in execution or understanding shows the testator did not know and approve the document, the will (or the affected part) may be refused probate. Where the mistake lies in recording the testator’s true instructions, rectification may be available.
Rectification of Mistakes
If a will fails to carry out the testator’s intentions due to a clerical error or a failure to understand instructions, the court may order rectification under s.20 Administration of Justice Act 1982. “Clerical error” is interpreted broadly to cover failures in transcription or drafting; “failure to understand instructions” includes a drafter’s misapprehension of the testator’s directions.
Rectification is a targeted remedy: the court amends the will so it gives effect to the proven intention at the time of execution. It is not available for a mere change of mind after execution or to repair an intentional but unwise disposition. Applications should ordinarily be made within six months of the grant of representation; the court has discretion to allow late applications.
Evidence commonly includes the drafter’s file, attendance notes, drafts, contemporaneous emails/letters, and witness statements. The court seeks persuasive proof of the testator’s actual instructions and the causal error.
Key Term: rectification
The court’s power to correct a will so that it reflects the testator’s true intentions, where the will fails due to a clerical error or misunderstanding.
Worked Example 1.2
Scenario:
A testator instructs their solicitor to leave £10,000 to their niece, but the will as drafted leaves £1,000. The testator signs the will, not noticing the error.
Answer:
If the court is satisfied that the error was clerical or due to a misunderstanding of instructions, it may rectify the will to give effect to the testator’s true intention (£10,000 to the niece). Attendance notes and draft correspondence are key. Rectification is directed at restoring the intended figure; it does not otherwise rewrite the will.
Mistake in Execution
If the testator signs a document believing it is something else, or does not know they are signing a will, the will is invalid for lack of knowledge and approval. Similarly, if key alterations were inserted after execution without re-execution or proper attestation, they are ignored, unless there is proof they were made before execution or are obliterations that render text illegible on the original and thus ineffective.
Where the testator is blind, illiterate, or does not read English, the presumption of knowledge and approval does not apply. Best practice is to include a special attestation clause stating that the will was read over or explained and understood; otherwise, the probate registry may require affidavit evidence of knowledge and approval.
Revision Tip
When reviewing a will, always check that the testator has read and approved the contents, and that the will accurately records their instructions. A clear attestation clause and detailed attendance notes are useful if validity is later contested, especially where the testator was vulnerable or there are suspicious circumstances.
Practical Application and Evidence
When a will is challenged on the grounds of duress, undue influence, or mistake, the court will consider all the circumstances, including:
- The testator’s vulnerability (age, illness, dependence)
- The relationship between the testator and the alleged influencer
- The presence of suspicious circumstances (unexpected changes, exclusion of close family, involvement of a beneficiary in preparation)
- The evidence of the solicitor or other witnesses to the will’s execution
- The content and quality of attendance notes, drafts, and communications evidencing instructions
- Whether independent advice was provided and the extent of any isolation or control by a beneficiary
The court will not set aside a will simply because it is unexpected or unfair. There must be clear evidence that the testator’s free will was overborne or that the will does not reflect their true intentions due to mistake.
In practice, solicitors mitigate risks by:
- taking instructions alone, away from potential influencers
- recording full instructions, capacity assessment, and reading over the will
- using special attestation clauses for blind or illiterate testators
- refusing to act if coercion appears “glaringly obvious” or insisting on independent advice where concerns arise
- ensuring alterations post-execution comply with formalities (re-execution or codicil)
Worked Example 1.3
Scenario:
A testator leaves their entire estate to a new friend, excluding their children, after a period of declining health. The children allege undue influence.
Answer:
Unless the children can prove that the friend exerted improper pressure amounting to coercion, the will is likely to be upheld. Suspicious circumstances alone are not enough; the court requires evidence of actual undue influence. The propounder must, however, establish the testator’s knowledge and approval if circumstances are suspicious—typically through solicitor evidence and an attestation clause. Vulnerability increases scrutiny but does not invert the burden of proving coercion.
Worked Example 1.4
Scenario:
The testator intended to leave “my 500 shares in Q plc to Sam,” but the drafter mistakenly typed “50 shares.” The will was duly executed.
Answer:
This is a classic rectification case under s.20 AJA 1982. If attendance notes and drafts show the testator instructed a gift of 500 shares, the court may rectify the figure to 500. It is a clerical error; rectification restores the original intention rather than rewriting the scheme.
Worked Example 1.5
Scenario:
A relative repeatedly tells the testator that their daughter is stealing from them. The allegations are false and the relative knows they are false. The testator, believing the falsehoods, disinherits the daughter.
Answer:
This engages fraud (fraudulent calumny). If proved on the balance of probabilities, the court can set aside the affected gift (or will) because the testator’s mind was poisoned by dishonest statements. This is distinct from undue influence: the vice is deception rather than coercion, but the effect is the same—the dispositions do not represent the testator’s free, informed intention.
Worked Example 1.6
Scenario:
A will leaves “my house at Green Lane to Pat.” The testator owned two properties on Green Lane, and the will contains no further description.
Answer:
This raises a construction issue. The court may admit extrinsic evidence under s.21 AJA 1982 to resolve the ambiguity and identify the intended property (e.g., instructions, drafts, or the drafter’s file). If evidence shows which house the testator meant, the gift takes effect accordingly. This is not rectification; it is interpretation using admissible extrinsic evidence for an ambiguous description.
Key Point Checklist
This article has covered the following key knowledge points:
- Duress and undue influence can render a will or codicil invalid if the testator’s free will is overborne.
- Undue influence requires proof of coercion, not just persuasion or opportunity; there is no presumption in testamentary cases.
- Fraudulent calumny (poisoning the testator’s mind by falsehoods) can also invalidate a gift or will if deception caused the disposition.
- Suspicious circumstances may require the propounder to prove knowledge and approval, but they do not themselves prove undue influence.
- Mistake can affect the validity of a will or codicil if it causes the document not to reflect the testator’s true intentions; lack of knowledge and approval arising from mistake in execution invalidates the will.
- The court may rectify a will under s.20 Administration of Justice Act 1982 for clerical errors or misunderstanding of instructions; applications should ordinarily be made within six months of the grant, subject to judicial discretion.
- The court considers all the circumstances and requires clear evidence before setting aside a will for duress, undue influence, or mistake; solicitor attendance notes and attestation clauses are important evidential tools.
Key Terms and Concepts
- will
- duress
- undue influence
- coercion
- mistake (in wills)
- rectification