Protecting the elderly & vulnerable from coercive control via Will & Estate planning

In a world where the protection of the elderly and vulnerable from controlling and coercive behaviour is paramount, the planning of your Will and estate becomes crucial. The recent conviction of Luke D’Wit for the murder of Carol and Stephen Baxter of Essex was a chilling reminder of how elderly people are easy targets. Through this blog, we seek to shed light on the nature of controlling or coercive behavior, its legal ramifications, and the preventive measures available through informed estate planning. With a focus on the role of solicitors in identifying and mitigating these risks, we aim to provide a comprehensive guide to ensuring the safety and autonomy of individuals in their most vulnerable moments.

Jump to the relevant section: 

• What is the Luke D’Wit Case?
• What is Controlling or Coercive Behaviour (Serious Crime Act 2015)?
• Wills and estates issues related to controlling or coercive behaviour
• Controlling or coercive behaviour within domestic settings
• Controlling or coercive behaviour: The role of solicitors

What is the Luke D’Wit Case?

Luke D’Wit poisoned the couple with the drug, Fentanyl, posed as a doctor and created a fake Will which gave him control of Carol’s business.

This led to a murder conviction but the adult children of the Baxters described how their parents had lost their freedom and independence long before their deaths as D’Wit began to control their lives, including their medication.

What is Controlling or Coercive Behaviour (Serious Crime Act 2015)?

Section 76 Serious Crime Act 2015 (SCA 2015) created the offence of Controlling or Coercive Behaviour in an intimate or family relationship (CCB) and the statute provides that an offence is committed against a victim if:

• The perpetrator repeatedly or continuously engages in behaviour towards the victim that is controlling or coercive; 
• At the time of the behaviour, the two parties are personally connected; 
• The behaviour has a serious effect on the victim; and  
• The perpetrator knows or ought to know that the behaviour will have a serious effect. 

It is the cumulative impact of CCB and the pattern of behaviour which is crucial.

Examples of Controlling or Coercive Behaviour can involve (but aren’t limited to):

• Isolating a person from friends and family 
• Monitoring time 
• Using spyware 
• Controlling everyday life 
• Humiliating/degrading the victim 
• Taking benefits, wages or allowances 
• Using substances such as alcohol or drugs to control a victim.   

 This is not an exhaustive list. 

 It is replicated in the Family Procedure Rules 2010, Practice Direction 12J which defines coercive control as follows: 

“Coercive behaviour” means an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim 

“Controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or a dependant by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Specialist family lawyers no longer speak of “domestic violence” and recognise this is “domestic abuse” with an understanding that coercion and control may be more difficult to establish than acts of violence. 

The mechanism for determining whether CCB has taken place is a fact-finding hearing but, in a chronically under-resourced legal system, it is now clear that fact finding hearings will only be ordered where there is a real likelihood that the welfare issues raised will have a significant impact on child arrangements. 

As legal advisors, we are also experienced in obtaining Non molestation orders which can prevent controlling or coercive behaviour. In more extreme cases, we will seek Occupation orders to restrict the perpetrator’s property rights or to exclude them from the property.  

Contact us: You can email us your query at mail@anthonygold.co.uk or give us a call on 020 7940 4060.

Wills and estates issues related to controlling or coercive behaviour

Controlling or coercive behaviour is not often without motive. There is usually beneficial gain to be had from the person displaying this behaviour, and unfortunately there is no limit to the lengths people will go to obtain this benefit.  

However, issues can be particularly difficult when dealing with the wills and estates of the most vulnerable.  

There is a concerning increase in the methods that can be used to manipulate the older generation, ones which have not yet recognised, such as: 

• online banking or 
• online shopping scams. 

Although serious, and still having its impact on society, there are numerous provisions in place to help identify and prevent these scams from being successful, and numerous programmes in place to help those who have fallen victim to such manipulation.  

Controlling or coercive behaviour within domestic settings

What’s not often in headlines is the increase in coercion occurring within the domestic setting. There are particular difficulties when identifying coercive behaviour between close friends and members of a family. This is primarily due to the requirement to respect the family’s privacy. Even then, there are still domestic disputes which cause confusion within court, causing us to receive some interesting judgments and points to consider. 

What counts as ‘undue influence’ under controlling or coercive behaviour?

In Williams v Williams (2022), which tackles a claimant who challenged the validity of her mother’s will, as she had a suspicion that her sister was influencing her decisions. 

The claimant’s argument stemmed from a decline in the relationship with her mother, paired with a sudden improvement in her sister’s relationship.  

The claimant put forward two reasons to challenge: 

1. The mother did not have testamentary capacity to make a new Will, and  

1. Undue influence by the defendant. 

In this case, the judge held that there was no undue influence, and the mother did retain testamentary capacity, dismissing the claim. 

Whilst this may seem like a standard application of the law, protecting those who have been wrongly accused through subjective questioning, the judgment of Judge Keyser QC, referenced a quote of Lord Hobhouse in the case of Etridge; 

‘Actual undue influence does not depend upon some pre-existing relationship between the two parties though it is most commonly associated with and derives from such a relationship’.  

Hobhouse hints that, although not mentioned in statute, and though it is not dependent upon a pre-existing relationship between the parties, there is still association and evidence to suggest that coercive behaviour is formed through these relationships.  

Further the judgment of Judge Keyser refers to the words of Lewison J, in Re Edwards (2007), where he makes a clear point which can be applied today:  

‘The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything.’ 

What Lewison is highlighting is that, rather than objectifying the meaning of coercive behaviour, we need to be critical of all variables when dealing with cases such as the above. For example, vulnerable people may succumb to consistent pressure applied to them a lot quicker than others, purely for the sake of a quiet life. 

Whilst the Serious Crimes Act 2015 may seem like recent legislation, the truth is that developments in technology and society since then have left it outdated. As of April 2024, there is currently no recognition for those who are more vulnerable to giving in to these pressures.  

Controlling or coercive behaviour: The role of solicitors

As practitioners we are often instructed to assist with will-making for people who are keen to put their affairs in order. As such we need to be aware that those people may be suffering from dementia or other vascular diseases which may have an impact on their mental capacity, but also be alive to the fact that they may be the victim of coercive or controlling behaviour. 

If a solicitor fails to properly assess the testator’s capacity to make a will, or where the validity of that will is questioned, they may end up being liable for the costs if a challenge arises to set aside a disputed will.  Not to mention the risk of reputational damage. 

What does ‘capacity to make a Will’ mean?

A client must have capacity to give instructions to make their will. A person may be capable of understanding their will on one day but not the next, as capacity can vary from day to day or even hour to hour. 

Capacity is also decision specific and so a person may retain capacity to make some decisions, but not others. Under the Mental Capacity Act 2005 it is assumed a person has capacity to make a decision themselves unless it is proved otherwise. 

A person must have capacity at the relevant time – so simply confirming capacity at the time of obtaining instructions is not sufficient. The solicitor should take steps to satisfy their client’s capacity and depending on the circumstances, it may be appropriate for the solicitor to recommend obtaining an independent assessment by a medical practitioner to confirm capacity. 

What is the ‘Golden Rule’ of Testamentary Capacity?

Where capacity may be an issue, solicitors should follow the ‘Golden Rule’, which recommends that:  

• An appropriately qualified person should confirm that a testator has the requisite capacity to give instructions regarding the specific matter, 
• Any earlier will/s should be discussed with the testator; and 
• Instructions should be given free of influence and without prompting from anyone who stands to benefit. The testator should be seen on their own or, if support is required, that person should be independent. 

Good practice for all solicitors, in all cases, is to follow the Golden Rule, this protects the testator, their estate, and the solicitor. In the event the Golden Rules are not followed the solicitor leaves themselves open to a negligence claim. 

Whilst solicitors usually exercise more caution with elderly and vulnerable clients because they may be more susceptible to incapacity or influence, all clients should be treated the same.  

It also needs to be remembered that an unwise decision is not necessarily an indication of incapacity. The facts of each case will be different. 

A solicitor has a duty to establish, in so far as they are able, whether the client is acting freely, without coercion and with a full understanding of the transaction. 

To be able to fully understand the impact of a decision a testator must:  

• understand the information relevant to the decision,  
• retain if for long enough to make the decision, and  
• understand the consequence of making or not making a decision. 

Scenarios of undue influence a solicitor must look out for:  

• A testator making changes to their will representing a significant departure from previous wishes (i.e. favouring one beneficiary over another where both have previously been treated equally, or the removal of beneficiaries who have previously been included). 
• The presence at, or arrangements being made for a Will meeting by a person who will benefit from the proposed change in the Will. Instructions being given by that person or correspondence from them rather than the testator freely giving them.  
• Where the testator’s personal circumstances, including age and/or medical conditions make them particularly vulnerable. 

Challenges often arise based on lack of capacity or undue influence. By ensuring robust processes are followed, and the file fully documents the interactions with the testator and the considerations of the solicitor, any challenge will be difficult. 

However, if those processes have not been followed – for example there has been a failure to consider the testator’s capacity – and the will is set aside as a result, then in those circumstances the parties who lose out because of the will being set aside may well have a claim against the solicitor. 

Contact us: You can email us your query at mail@anthonygold.co.uk or give us a call on 020 7940 4060.