As a practitioner, it is often hard to ascertain when influence becomes 'undue'.  Where elderly and other vulnerable clients are concerned, this is particularly true as lines can easily become blurred as relationships change. 

As old age and ill health set in, many people do rely more heavily on others for support and guidance in every day life including making decisions.  This is often recognised by the courts as a natural state of affairs and if the decision making power is given by the elderly person rather than taken by the other person, it is often the case that influence is viewed as acceptable. This was acknowledged in the recent case involving the leader of the Christian People's Alliance in connection with his mother where the Judge noted that his sister's actions had not amounted to undue influence (she lived and cared for her mother).

The Chin case is interesting. It involves a wealthy elderly lady who suffered a stroke and subsequently changed her Will to leave her estate to her son rather than between all her children equally (she also had five daughters).  This was in accordance with her husband's wishes that the inheritance pass to the male heir although she herself had apparently wished to include her daughters.

There is suggestion that the differing views of Mr and Mrs Chin caused arguments and the Judge notes that it is likely that Mrs Chin changed her Will to avoid any more arguments. It is interesting that this was held to amount to undue influence.  It is difficult to comment further without hearing all the evidence but, certainly, it is not uncommon for married couples to have disagreements and for one party to submit to the other for the sake of a quiet life. To say they are subject to undue influence seems quite a step to make.

Unfortunately, many undue influence cases are also tied up with issues of mental capacity which adds further complexity. Clients need support more than ever after life-changing events such as strokes so it is natural that they are open to influence but whether or not such influence is undue or simply part of normal interactions can be really hard to determine.

Patricia Wass for CLT discusses the topic of undue influence extensively in this on-demand webinar: