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Undue Influence and Will Substitutes: Vitiating Transactions that Blur the Boundaries between Life and Death
Modern Law Review  (IF1.779),  Pub Date : 2021-09-08, DOI: 10.1111/1468-2230.12677
Ben Chen, Natalie Silver

An ageing population combined with decades of economic growth has correlated with a rise in inheritance disputes. While many of these disputes involve wills, non-probate instruments known as ‘will substitutes’ that operate during the donor's lifetime but also transfer specific assets upon death are playing a significant role. To date, the academic literature has not adequately addressed how undue influence claims against will substitutes have been, or should be, resolved. Our case survey reveals two distinct doctrinal approaches taken by the English courts to resolve these claims. The first approach treats will substitutes as estate-planning instruments on par with wills; the second focuses on the lifetime operations of will substitutes. We argue that the first ‘testamentary’ approach is preferred to the second ‘lifetime’ approach. The testamentary approach not only better promotes testamentary intent and respects relational norms, it also decreases the risk of discrimination and paternalism against elderly people.