In the case of Nicholson v Knaggs [2009] VSC Justice Vickery departed from the traditional position in relation to the standard of proof. He found that the standard of proof in undue influence is as follows:
- where there is direct evidence—whether, on the balance of probabilities, the will of the will-maker was overborne to the requisite degree by conduct proven by direct evidence
- where there is circumstantial evidence—whether the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence has been evaluated as a whole.
In addition, in Nicholson v Knaggs the Court defined ‘undue influence’ by emphasising that:
The key concept is that of ‘influence’. The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle.