Managing Risk Factors in Estate Planning: Undue Influence and Fraudulent Calumny

Written By BTWC Ltd

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Estate Planning

At BTWC, we recognise the important role our partner advisers play in delivering high-quality estate planning outcomes for clients. Whether you are an estate planner, financial adviser, mortgage adviser or accountant, navigating complex family dynamics is often one of the most challenging aspects of the process.

Our friends at the Institute of Professional Willwriters have recently provided guidance around two key risk areas that continue to surface in client cases which are undue influence and fraudulent calumny. Understanding these concepts—and knowing how to identify potential warning signs—can help protect both your clients and your professional position.

Undue Influence and Coercion

Undue influence arises where a client’s freedom to make independent decisions is overridden by another party. In practice, this can be difficult to identify and even harder to evidence after the client’s death.

It’s important to recognise that family disagreements and strong opinions are entirely normal. In addition, clients may feel pressure to “do the right thing” by family members but not all persuasion amounts to undue influence

However, undue influence may be present where pressure overrides the client’s genuine, independent wishes and decisions appear inconsistent without clear reasoning. It may be that the client is making choices simply to avoid conflict or maintain peace or that influence is applied gradually over time, rather than through a single event

There is no automatic assumption of undue influence—it must be proven, and the threshold is high. Each case will depend heavily on its specific facts.

Lessons from Recent Case Law

The case of Rea v Rea highlights how nuanced these situations can be.

In this case a mother changed her Will to favour a daughter who had become her primary carer. The other siblings challenged the decision, alleging undue influence but ultimately, the Court of Appeal found no undue influence had occurred and the deceased had indeed made a valid Will.

The key takeaways from this case for professional advisers are that vulnerability does not automatically mean lack of independence and a strong or assertive family member is not, in itself, evidence of coercion. Equally, the burden of proof remains very high in order for a claim to be considered and subsequently upheld

Practical Steps for Advisers

As a professional adviser, there are several practical steps you can take to help mitigate risk:

See the client independently wherever possible
Build trust and rapport, reinforcing your role as a professional adviser acting in their best interests
Explore family dynamics to understand the wider context
Document thoroughly, ensuring clear, compliant records of discussions and decisions

At BTWC, we’re here to support you with both case drafting and technical guidance, helping you navigate these situations with confidence.

What is Fraudulent Calumny?

Fraudulent calumny is a more specific—and often more subtle—risk. It occurs where someone deliberately misleads a client about another person, with the intention of influencing inheritance decisions.

In simple terms, it involves “poisoning the mind” of the client against a natural beneficiary.

For fraudulent calumny to be established it must be evidenced that false statements have been made about another person. The person making the statements knows they are untrue (or is reckless as to their truth) and the client’s decision is influenced as a result. As with undue influence, the key question remains: was the client acting freely?

Identifying Potential Red Flags

Fraudulent calumny can be particularly difficult to detect, but there are indicators to be aware of. If a client wishes to exclude or reduce provision for someone who would usually be expected to benefit, it’s important to explore the reasoning: