Understanding Undue Influence in Estate Planning in NSW

17^th September, 2025

Estate planning is often a sensitive and complex process. Unfortunately, undue influence remains a common ground for contesting a Will in New South Wales (NSW). But what exactly does undue influence mean in this context?

What is Undue Influence?

Undue influence occurs when someone in a position of power or trust over the testator (or the Will-maker) pressures or manipulates them. As a result, the testator makes a Will that benefits the influencer rather than reflecting their true intentions. This often happens when the testator is vulnerable, such as during illness or old age.

For example, a caregiver might isolate the testator from family members, convincing them to change their Will in the caregiver’s favour. Alternatively, a family member may apply emotional pressure on the testator to alter the Will under duress. In these cases, the testator’s free will is effectively overpowered by the influencer.

Types of Undue Influence: Actual vs Presumed

There are two main types of undue influence recognised by the courts: actual and presumed undue influence. Actual undue influence requires clear proof that the influencer exercised control over the testator’s decisions. Meanwhile, presumed undue influence arises when the relationship between the parties naturally suggests a power imbalance.

For instance, relationships such as solicitor and client, doctor and patient, or religious leader and follower often carry this presumption.

Why is Proving Undue Influence Difficult?

Proving undue influence in NSW is notoriously difficult. Since the testator is deceased when the Will is contested, their motivations cannot be directly questioned. Therefore, the court relies on evidence from witnesses such as family members, health professionals, or legal advisors.

Additionally, a person must show that the testator’s decisions were unusual given their circumstances, and that the influencer benefited unfairly from the Will.

Key Legal Principles: The Wingrove v Wingrove Case

A landmark case often cited in Australia is Wingrove v Wingrove [1885]. The court explained that undue influence includes subtle forms of pressure. For example, a frail testator might be persuaded by mere conversation or persistent requests, rather than overt force.

This kind of coercion can be enough to invalidate a Will, recognising that undue influence does not always have to be physical or overt.

How to Challenge a Will on Grounds of Undue Influence

To succeed in contesting a Will on these grounds, it is essential to demonstrate that the testator was vulnerable, trusted the influencer, and was taken advantage of. The court also considers whether the testator received competent legal advice and had adequate time to understand their decisions.

These factors help rebut any presumption of undue influence and strengthen the case for contesting a Will.

How Our Firm Can Help You

If you suspect undue influence has affected a Will, it is crucial to seek expert legal advice immediately. Contesting a Will involves strict time limits and complex legal standards.

At Castrikum Adams Legal, we assist clients with undue influence and estate disputes across the Northern Rivers, including Lismore, Ballina, Byron Bay, Murwillumbah, and surrounding areas. Our experienced team offers compassionate, tailored advice to protect your rights. Whether you need help contesting a Will or drafting a secure estate plan, we’re here to guide you every step of the way.