A cornerstone of the English legal system has long been the concept of testamentary freedom. That is, that a person must be free to dispose of their assets as they wish on their death.

Accordingly, it follows that a person must be free to make their will voluntarily. If it is found that they were forced into signing a will, or undue pressure was put on them, the will is invalid. However, the difficulty with undue influence claims is proving that the deceased's decision making process in executing the will was undermined by the actual "undue influence" of another person. It has long been settled law that influencing someone to make a will in certain terms is okay. What is not acceptable however, is when that influence tips over to be coercive. The case of Edkins v Hopkins proves just how difficult a claim of undue influence can be.

In this case, the testator Philip Hopkins was suffering from alcoholic liver damage. A few weeks before signing his will, he had been admitted to hospital. During his two week stay in hospital, it had been recorded that he was incontinent, depressed and confused on various occasions. He declined input from the alcohol liaison service and discharged himself from hospital against medical advice, just ten days before the signing of his will.

Mr Hopkins executed his will in his home in the presence of the solicitor who had drawn it up. During the execution of the will, she observed that he was physically unwell and a doctor was called. Later that day Mr Hopkins was readmitted to hospital and died some three months later.

Mr Hopkins left the bulk of his estate to his longstanding friend and business partner, Gary Edkins.

Mr Hopkins' widow and three sons asserted that Mr Edkins took advantage of Mr Hopkins while he was in a vulnerable state, and put undue influence on him to make sure he inherited the bulk of his estate.

Indeed, Mr Edkins was clearly in a position whereby he could influence Mr Hopkins, and did have a degree of control over him. Mr Edkins was running his business, was in control of his personal mail and payment of his bills and was the one who telephoned the solicitor to arrange for the will to be drawn up.

However, after considering all of the facts and witness evidence, the judge found that the will should stand. He accepted that, while Mr Hopkins was physically and mentally vulnerable and at times had a confused state of mind due to his alcoholism, it was a "step too far" to find that Mr Edkins' control took away Mr Hopkins' free will in a way that amounted to undue influence. The judge acknowledged that Mr Hopkins and Mr Edkins had enjoyed a long term relationship and stated that Mr Edkins' control over Mr Hopkins should be assessed in the context that Mr Hopkins chose to place a significant level of trust in Mr Edkins and had done so for many years.

What seems to have been a particularly important feature of the judge's decision making was the fact that an experienced solicitor was involved in the will drafting and execution. The solicitor had prepared extensive attendance notes and gave evidence that although that he was unwell, she was satisfied that he understood what he was doing and understood the terms of his will.

This case not only highlights the notoriously high evidential burden claimants need to surmount, but also the weight the court places on professionally drawn wills. It would be interesting to see whether the outcome would have been different had Mr Hopkins drafted his own will.

Full details of this case can be found here.