In disputes over Wills and estates, allegations of undue influence represent some of the most challenging and complex cases for families and legal professionals alike. As we move through 2026, the High Court in England and Wales continues to refine how it handles these disputes. One practical defence sometimes raised by executors or beneficiaries is the colloquially termed “kissing defence.” Although not a formal legal doctrine, it encapsulates the argument that ordinary familial persuasion or affection should not be equated with coercion or undue influence. Understanding how this defence fits within evolving judicial trends is essential for anyone involved in contested probate matters.
At Blackstone Solicitors, we regularly advise clients across England and Wales on disputes involving undue influence. This article explains what the “kissing defence” refers to, how the courts approach undue influence claims, and what trends are emerging in 2026.
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What is the “kissing defence”?
The “kissing defence” is not a recognised legal term in statute or case law. Rather, it is shorthand used in practitioner circles and courtrooms to describe the argument that normal family interactions, including affection or emotional closeness, should not on their own amount to undue influence.
In essence, defendants may argue that just because a close relative was involved in the testator’s life, provided support, or exhibited affection such as hugging or “kissing,” this does not mean they exerted coercive pressure that overrode the testator’s free will.
This defence is raised in response to allegations that a will does not reflect the true intentions of the deceased because someone in a position of trust used their influence improperly. In probate law, the key question is whether improper or overpowering pressure was applied that replaced the testator’s autonomy with that of the influencer, not whether the influencer was merely affectionate or persuasive.
Undue influence in the High Court: the legal background
Undue influence arises where someone exerts pressure over a testator sufficient to overpower their free will. This is a rare and difficult ground on which to challenge a will. Mere discussion, advice or encouragement does not, on its own, amount to undue influence. The courts require evidence of coercion or manipulation that goes beyond normal familial interaction.
In contested probate proceedings, the onus is on the party challenging the will to demonstrate that undue influence occurred. The standard of proof is on the balance of probabilities, and the court will carefully weigh all evidence.
The distinction between persuasion and coercion
One of the central issues in undue influence cases is distinguishing between legitimate persuasion and coercion. Courts recognise that family members may naturally offer opinions or encourage particular decisions. It is only when pressure crosses the line into coercive conduct that overbears the testator’s free will that undue influence may exist.
This distinction lies at the heart of the so‑called “kissing defence.” Defendants often argue that the claimant’s case is based on ordinary family persuasion or emotional support rather than any improper exertion of power. Such arguments can be compelling where the testator was active, engaged and had capacity to make their own decisions.
In recent High Court decisions, judges have reiterated that persuasion, encouragement or emotional support does not, without more, establish undue influence. There must be evidence that the influencer’s conduct effectively displaced the testator’s free agency.
The evidential challenge in undue influence claims
Undue influence claims are notoriously difficult to prove. Most pressure occurs in private, often without direct witnesses or contemporaneous documentation. The testator is usually deceased before allegations are raised, leaving claimants reliant on circumstantial evidence.
Typical evidence considered by the courts includes:
- Changes to the will that appear unexplained or out of character;
- Sudden inclusion of a previously uninvolved beneficiary;
- The testator’s vulnerability due to age, illness or dependency;
- Isolation of the testator from other family or professional advisers;
- Circumstances suggesting that the alleged influencer controlled access or information.
The presence of a close family member at meetings with a solicitor, for example, may raise eyebrows but does not automatically prove coercion. Solicitor attendance notes and independent medical evidence often carry significant weight in these assessments.
High Court trends in 2026
Recent and ongoing High Court cases reflect some broader trends in how undue influence claims, including defences asserting normal familial affection, are being treated.
Higher evidential threshold emphasised
The Court of Appeal’s decision in Rea v Rea emphasised that claimants must show undue influence is “more probable than any other explanation” for the challenged will. In practical terms, this means that innocent explanations for the testator’s decisions must be less convincing than the allegation of coercion.
This trend makes a “kissing defence” or similar arguments more potent where claimants’ evidence is circumstantial and does not clearly rule out ordinary family persuasion or genuine testator intent.
Careful scrutiny of motivation and timing
Judges in 2026 are increasingly attentive to the context in which wills are changed. Sudden alterations close to death, particularly when the testator was frail or vulnerable, continue to attract scrutiny. However, where a will change can be explained by rational reasons – for example, gratitude for care provided or longstanding personal preferences – courts are cautious about inferring undue influence.
Critics of undue influence claims note that testators may well choose to reward those who cared for them. Courts will not infer coercion simply because a caring son or daughter is the key beneficiary; there must be evidence of overpowering pressure. This careful scrutiny supports defences based on ordinary family relationships where no coercive conduct is shown.
Integration with other grounds of challenge
In contentious probate practice, undue influence often sits alongside other grounds of challenge such as testamentary capacity, lack of knowledge and approval, or fraudulent calumny. These combined allegations may strengthen a claimant’s case, but they also require distinct proof.
If undue influence is alleged without other supportive evidence, a defence grounded in normal familial engagement and affection is more likely to succeed. Conversely, where there is strong evidence of manipulation, isolation or dependency, the court may place less weight on arguments that loving conduct was the only explanation.
Litigation technology and evidence gathering
Litigation trends in 2026 show a growing role for technology in analysing evidence, even in probate disputes. While not specific to undue influence, the use of digital tools to organise and evaluate medical records, communications and other documents is becoming more common. Courts are also increasingly familiar with digital evidence, such as text messages or emails indicating control or coercion.
This trend means that claimants and defendants alike must be strategic in gathering and presenting evidence. Affectionate communication alone is unlikely to support an undue influence claim unless other factors are present that demonstrably overwhelm the testator’s independent decision making.
Practical implications for contested probate
Given these trends, solicitors advising on undue influence disputes in 2026 must focus on evidence that differentiates coercive conduct from ordinary family interaction. Key considerations include:
- Ensuring detailed attendance notes during will preparation;
- Collecting contemporaneous evidence of the testator’s intentions and circumstances;
- Assessing all available medical and social records;
- Identifying independent witnesses to interactions if possible.
For potential defendants, emphasising rational explanations for will changes and demonstrating the testator’s independent decision making can be central to a successful defence.
How Blackstone Solicitors can help
Undue influence disputes are complex and emotionally charged. At Blackstone Solicitors, we advise clients across England and Wales on all aspects of contested probate, including claims and defences involving undue influence.
Our team can help you assess the strength of a case, gather evidence, and develop a clear strategy tailored to your situation. Whether you are considering a claim or defending against one, early and informed legal guidance can make a significant difference.
Conclusion
The so‑called “kissing defence” captures a fundamental reality of undue influence disputes: not all family involvement is coercive. In 2026, the High Court continues to emphasise the importance of clear, cogent evidence before setting aside a will on the grounds of undue influence. Arguments based on ordinary familial affection, persuasion or support remain valid defences where there is no evidence of overpowering pressure.
If you are involved in a will dispute, understanding these judicial trends and the evidential challenges involved will be key to achieving the best possible outcome. With careful preparation and expert legal support, it is possible to navigate these difficult disputes while protecting your interests and the wishes of the deceased.
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Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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