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In English law a person is free to dispose of their property upon death as they see fit, it is the well-known doctrine of “testamentary freedom”. We know, however, from the rapid increase of probate disputes that despite “testamentary freedom”, disappointed beneficiaries will challenge a will for any number of reasons.

One of the several ways in which a disappointed beneficiary can challenge a will is on the grounds of undue influence. Undue influence is “pressure whatever character…if so exercised to overpower a person’s wishes” or “coercion”.

Undue influence can be a concern for legacy professionals when deciding what steps to take to increase legacy donations. Whilst they want to encourage their donors to leave a legacy in their will, a charity may be reluctant to actively campaign for legacy donations where they believe there is a risk that they could be accused, by disappointed beneficiaries, of putting undue pressure upon or coercing the testator to leave a legacy to the charity.

This article explores whether a charity’s legacy can ever really be at risk of a claim for undue influence.

Types of undue influence

There are two types of undue influence: actual and presumed undue influence.

Actual undue influence

Actual undue influence occurs when someone has overpowered a testator’s judgment. Any person claiming undue influence must be able to prove it. This can be difficult because often the main witness is the testator, who will be deceased when a claim arises and, if undue influence does occur, it normally takes place quietly and with very few people present.

To generate bequests in wills from existing supporters, a charity will do so in a way that could probably be best described as “persuasion” and persuasion is not unlawful.

Charities should educate their supporters on the benefits of leaving a charitable legacy, also perhaps the benefits of having a will at all, and ask them if they have considered leaving a legacy in their will. Charities can even recommend a solicitor.

It is highly unlikely that a charity’s actions to generate bequests in wills would be such to undermine the influence of an individual and completely oppress their free will, all of which would be needed to prove actual undue influence.

Presumed undue influence

The second type of undue influence is presumed undue influence. This can arise in certain types of relationship (usually between husband and wife or parent and child and the gift in question) involving a history of actual undue influence and where something has happened that requires an explanation.

Presumed undue influence is normally a fall-back position when actual undue influence has not been proven. There is no claim for presumed undue influence under a will. In these circumstances, it is unlikely that a charity would be accused of presumed undue influence where a charitable bequest has been left by a supporter.

What can charities do to protect their legacy income?

A charity is highly unlikely to find any charitable bequests being set aside because of undue influence.

There are of course other considerations that a charity will need to consider when seeking to increase legacy income, such as monitoring the success of any legacy campaign, given that it could take years before any legacy income is generated, and also considering how a legacy campaign can be marketed in a sensitive and careful way. Death and wills are a sensitive topic and charities must be mindful of the PR consequences of such campaigns.

Protect or defend your charity’s legacy income

If you wish to discuss any of the issues raised in this article or any other issues that you might have relating to legal consequences of legacy campaigns, then please do not hesitate to contact our charity lawyers on 01332 226 476.

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