General information only — not legal advice. This guide explains undue influence in general terms. Whether undue influence existed in a particular case is a question of fact for a court, based on all the evidence. If you are concerned about pressure being applied to you or someone you care about, contact a qualified New Zealand lawyer promptly.
What undue influence means
Undue influence is pressure or manipulation that overcomes a person’s free will, so that the will they make reflects someone else’s wishes rather than their own. It is different from lack of capacity: a person can fully understand what they are doing and still be making a will they did not freely choose to make.
A will made under undue influence is not the will-maker’s true will. If undue influence is proved, the will — or the affected part of it — can be held invalid.
Why it matters
Undue influence matters because a will is meant to carry out the wishes of the person who made it. When someone’s wishes have been overborne, the result can be an estate that benefits the wrong person and leaves the people the will-maker actually cared about with nothing. Allegations of undue influence are also a common cause of bitter family disputes after someone has died.
What it can look like
Undue influence is often subtle rather than violent. It can include:
- isolating the person from family and friends, or controlling who they can see and speak to;
- controlling their finances, mail, phone or access to information;
- being present at every conversation about the will, and answering for them;
- threats, intimidation, abuse or constant pressure;
- making the person feel afraid, dependent or obligated;
- arranging sudden changes to a will that benefit the influencer; or
- keeping the new will secret from everyone else.
Undue influence can happen within any relationship — a partner, adult child, caregiver, friend or new acquaintance. The common thread is that the will-maker no longer feels free to decide.
Influence is not the same as persuasion
People naturally influence each other. A child asking their parent to think about them, a partner discussing wishes, or a caregiver suggesting the person make a will are not, by themselves, undue influence. What matters is whether the will-maker made the decision freely, with genuine understanding, and without their will being overborne.
Similarly, leaving a gift to someone who cared for the will-maker is not automatically suspicious. Caregivers and close family members are often the very people a person wants to provide for.
Who can be vulnerable
Anyone can be subjected to undue influence, but some people are more vulnerable, including people who:
- are elderly or unwell;
- have memory or cognitive difficulties;
- depend on another person for care, transport or finances;
- are isolated from family or community;
- have recently lost a partner and are grieving; or
- have a disability or communication difficulty.
Vulnerability does not mean a person cannot make a valid will — many do. It means extra care should be taken that the will genuinely reflects their own wishes.
How a court looks at it
The person challenging a will must prove undue influence on the evidence. Courts look at the whole picture, including:
- the relationship between the influencer and the will-maker;
- the will-maker’s age, health and vulnerability at the time;
- whether the will was made in secret or with independent legal advice;
- whether changes were sudden or out of character;
- who was present when the will was discussed and signed;
- how much the influencer stood to gain; and
- whether the will-maker explained their reasons in their own words.
Evidence such as notes, recordings, medical assessments, emails and statements from people present can all help the court understand what really happened.
What helps protect against it
- Make the will with independent legal advice, away from anyone who may be applying pressure.
- Discuss the will with trusted family members where appropriate, so there are no surprises later.
- Record the will-maker’s reasons in their own words.
- Obtain a medical opinion where capacity is also a concern.
- Keep long-standing plans consistent unless there is a genuine reason for change.
- Watch for one person controlling access to the will-maker or the process.
Red flags to take seriously
Seek professional advice if you notice:
- a sudden change to a will that no one can explain;
- a will-maker being isolated from family or friends;
- one person always present, answering for the will-maker;
- gifts to a new partner, caregiver or acquaintance shortly after they appear;
- fear, anxiety or reluctance in the will-maker when the topic comes up; or
- a will that excludes long-standing family members without explanation.
FreeWills and undue influence
A self-service tool like FreeWills cannot detect whether someone is being pressured, and it cannot assess whether a person is acting freely. When you use FreeWills, you confirm that you are making your will voluntarily. If you are being pressured to make or change a will — or you are worried about someone else — stop, and get independent legal advice before signing anything.
The bottom line
Undue influence takes away the freedom that makes a will meaningful. It is often subtle, and it can happen in any relationship. Independent advice, openness, and acting while the will-maker is in control of their own decisions are the best protections — for the person making the will and for everyone they leave behind.