Contesting a Will: How to Prove Undue Influence

Relatives of a deceased person are often shocked to discover, after the death, that their names do not appear in the will, even though they are certain they too are entitled to a share of the inheritance. They have no doubt that the will does not reflect the true wishes of the deceased because, in their view, undue influence was exerted on the deceased when the will was written. So what can be done? After reading this article, you will see that relatives who were left out of an inheritance should not give up, because the law and case law give them tools to prove that they, too, are entitled to a share. Both the Succession Law, 5725-1965 (the "Succession Law") and the extensive case law on undue influence on a testator are unequivocal: if it is proven that undue influence was in fact exerted on the testator, the will is null and void.

In practice, however, things are not so simple. Proving that undue influence was exerted on the testator when the will was signed is no easy task, especially when the testator is no longer alive to testify about it. The alleged undue influence must therefore be proven from the circumstances surrounding the specific case, through a number of tests set out in the law and case law. Section 30(a) of the Succession Law states, in these words, that "a provision of a will made under duress, threat, undue influence, trickery or fraud is void." In other words, if it is proven that a will was signed in circumstances of "undue influence," it must be set aside. The question, then, is how undue influence is defined. The concept was examined in depth in the judgment of Justice Strasberg-Cohen in Civil Appeal 4902/92 Goodman v. Mousaieff, 49(2) 441, 448-450. In a nutshell, it is a question of fact, namely whether or not undue influence was exerted on the testator. In her judgment, Justice Strasberg-Cohen noted that the unfairness of the influence is a normative, value-based question, which the court must decide according to concepts of personal and social morality, while seeking the true wishes of the testator. Put differently, the issue is not the influence itself but its unfairness (see also Civil Appeal 5285/93 Marom v. Attorney General, 49(1) 318, 337).

A review of the case law shows that there are four main tests that help the court determine when certain conduct amounts to legitimate influence and when it amounts to undue influence. The first test - dependence and independence: The question the court asks itself is "During the period relevant to the making of the will, was the testator 'independent', physically and mentally/cognitively, and to what extent? The more independent the testator was, in each of these two respects, the stronger the court's inclination to rule out the testator's dependence on the beneficiary. Conversely, the less independent the testator was, in either of these respects, the stronger the inclination to find that the testator was dependent on the beneficiary." Whether the testator was independent should be examined over time, but it is mainly important to establish the testator's condition at the time the will was made and/or as close as possible to its signing. The second test - dependence and assistance: Where it turns out that the testator was indeed not independent and therefore needed the help of others, it must be examined whether the relationship between the testator and the beneficiary of the will was based on providing the help the testator needed. If it was the beneficiary who helped the testator overcome their difficulties and limitations, the court will tend to find that the testator was dependent on the beneficiary.

In this context, the court attaches importance to whether the beneficiary was the only one who helped the testator with all their needs, or whether the testator was also helped by others. Help from a single person may place the testator in a state of total dependence on that person, and such a situation may be a consideration supporting a presumption of undue influence. The third test - the testator's relationships with others: The decision on whether, and to what extent, the testator was dependent on the beneficiary may also be affected by the scope and extent of the testator's relationships with people other than the beneficiary. If it turns out that, during the period relevant to the making of the will, the testator was completely cut off from other people, or that their contact with others was limited and infrequent, the assumption that the testator was indeed dependent on the beneficiary will be strengthened.

The testator's very isolation from the world increases their dependence on the beneficiary. It follows that, for deciding the question of dependence, it makes no difference whether the beneficiary caused the isolation; even if the isolation resulted from objective circumstances, the isolation itself increases the testator's dependence on the beneficiary. The fourth test - the circumstances in which the will was made: Section 35 of the Succession Law provides that where a person took part in making a will, a provision of the will that benefits that person or their spouse is void. However, there may be situations in which the beneficiary's involvement in making the will does not amount to taking part in making it, but does constitute prima facie evidence of undue influence on the testator. Beyond these four tests, there are additional factors the court will take into account when it faces a case in which undue influence on the testator is alleged.

The importance of evidence that the testator received non-objective advice when making the will: In a series of judgments, the court has stressed the importance of independent legal advice when a claim of undue influence is examined. In the Marom case, the court held that where the wording of the will reveals the beneficiary's involvement in choosing the attorney who drafted it, "a careful examination of the circumstances is required to ensure that they do not point to undue influence."

The wording of the will as evidence of undue influence – When the will is worded in such a way that the person who had influence over the testator is also the obvious beneficiary of the will, or when the wording of the will clearly carries the beneficiary's "voice," or contains clauses that evidently come "from the mouth" of the beneficiary, it can be said that an act that is clearly to the beneficiary's advantage is the result of undue influence on their part. When there is no single "conclusive" piece of evidence, the overall circumstances are examined from a broad perspective. The case law has held that where there were several circumstances, such as the beneficiary's prior acquaintance with the attorney who drafted the will, the beneficiary giving the attorney the details of the desired will, driving the testator to the attorney, the beneficiary paying the legal fees, and the absence of an adequate medical certificate, the court may find that each such piece of evidence alone is not enough to indicate undue influence, but that all the evidence and circumstances together paint an uncomfortable picture of taking part in making the will and of undue influence.

The importance of evidence about the testator's physical and mental health: When examining a claim of undue influence, evidence about the testator's physical and mental health is of great importance. Even if the testator was legally competent to make a will, if their physical and mental condition made them susceptible to acting under influence that would lead them to leave their property contrary to their true wishes, that may be enough to find that undue influence was exerted on the testator. The testator's physical and mental condition may also indicate the extent of their dependence on others, as a result of which the testator may have lost the effective ability to carry out their own wishes, as distinct from the wishes of others. In light of all these aspects, it has been held that a testator's frail mental and physical condition calls for great caution when seeking to establish their independent will as a testator. Although this condition alone does not negate a testator's capacity to make a will, it serves as a warning sign regarding the possibility that they were subject to undue influence.

For example: In one case, considerable weight was given to the testator's severe depression and acute alcohol addiction during the period in which the will was made, and the court decided, in that specific case, not to uphold the will. In another judgment on the subject, a man's will was not upheld, among other reasons because of his difficulty functioning physically and taking care of himself due to his age, his detachment from anything outside his immediate needs, his apathy and depression, and his inability to take responsibility for actions beyond the minimal satisfaction of everyday needs. We can see that the court has various tools to examine whether, in the specific case before it, undue influence was exerted on the testator. At the same time, we can see that the difficulty is sometimes in proving those circumstances of undue influence many years after the will was signed, after the testator's death, and even after the death of those close to them who could have testified about the day the will was made and the circumstances surrounding its signing.

The court is aware of how difficult it is to prove undue influence and exercises particular caution in its findings on the subject, focusing on the overall circumstances and not insisting too strictly on proof of each of the tests set out in the case law. Finally, we note that the tests mentioned above in our article are not an "exhaustive list," since the case law shows that the court also examines the conduct and its components case by case (see, for example, the Goodman case). It is therefore recommended to consult a professional when pursuing such a matter, and the above should not be seen as a substitute for a legal opinion and/or legal advice.