The Dire case of Rea-v-Rea, Part 2: A High Bar For Testamentary Undue Influence

Anna Rea died leaving four children – a daughter, Rita who was the claimant in the court proceedings and three sons, Remo, Nino and David who were the defendants.

In a simple one page will made in 1986, Anna appointed Remo as her sole executor and divided her estate equally between her four children.  In a later will made nearly 30 years later in 2015 (‘the 2015 Will’) and described by the judge as being “a much more elaborate document running to six pages”, she made a specific gift of the largest asset in her estate (her house) to Rita absolutely “as she has taken care of me for all these years”. The residue of her estate, such as it was, was to be divided equally between her four children.

Included in the 2015 will was a declaration in the following terms:-

I DECLARE that my sons do not help with my care and there have been numerous calls for help from me, but they are not engaging with any help or assistance.  My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me, and I do not wish for them to share in my estate save what I have stated in this Will.

In July 2017, Rita issued proceeding seeking to prove the later will. The sons counterclaimed challenging the validity of that will on the grounds of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny.

The 2015 will was drafted by a qualified and experienced solicitor who was a member of both The Society of Trust and Estate Practitioners and the Association of Contentious Trust and Probate Specialists. She witnessed the will together with Anna’s longstanding GP.

There was an initial trial in September 2019 at which Rita was represented by counsel and the sons  represented themselves. The judge admitted the later will to probate in solemn form dismissing the sons’ counterclaims that it was invalid.

However, as a result of the way in which that trial was conducted by the judge there was a successful appeal, and a re-trial was ordered.  In allowing the appeal the Court of Appeal stated “I would therefore strongly urge the parties to these proceedings to do everything possible to reach a consensual settlement of their differences rather than fight out a re-trial. In particular, serious consideration ought to be given to mediation”.

In the light of the inability to settle the dispute, the second trial occurred in July 2023. Having heard a number of witnesses including the solicitor will draftsman and the Deceased’s GP (who were both witnesses to the will), the judge decided that Anna did have testamentary capacity, knew and approved of the terms of the 2015 will and there not been any fraudulent calumny but the 2015 Will was the product of undue influence.  The second appeal was heard on 1 February 2024 getting on for 7 years after the issue of proceedings.

The court sought to draw a distinction between undue influence on the one hand and legitimate persuasion, “appeals to the affections or ties of kindred, to a sentiment of gratitude for past services or pity for future destitution” on the other.

In contrast “pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made”.  This is particularly so with an elderly/infirm testator: “A person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result”.

In terms of proving undue influence the court said that whilst this is “on the balance of probabilities” “cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner.”

The difficulty with testamentary undue influence is that there is usually no direct evidence of the actual undue influence. “It is of the nature of undue influence that it often goes on when no one is looking.  That does not stop its being proved. The proof has to come, if at all from the circumstantial evidence”.

The Court of Appeal rejected the argument that evidence of undue influence had to be inconsistent with any other hypothesis.  It is certainly not enough to show that the facts are merely consistent with undue influence or that there was an opportunity to exercise undue influence.  “The true test is whether undue influence is the most likely hypothesis having regard to the inherent unlikelihood of someone practising undue influence on a testator”.

The trial judge found that the deceased was frail and vulnerable being wheelchair bound and hard of hearing and requiring constant care and attention.  They also said  that the claimant had an “argumentative and forceable personality” and a “forceful physical presence”. On top of that the trial judge found that the claimant “was an unsatisfactory, and an unreliable witness whose evidence I cannot safely accept unless it is corroborated by other reliable evidence or is contrary to her interests.”

Despite that the Court of Appeal was more persuaded by the evidence of the will draftsman whose evidence the judge said he accepted “entirely, as far as it goes” and the GP who the judge said was ”a reliable and truthful witness who was doing his best to assist the court”.  There was also evidence from Mrs Batson, a carer, who lived in the same house as the deceased and the claimant and who described the deceased as “strong minded” “stubborn” and “not a pushover”.

The court commented that both of the experienced professionals with relevant expertise saw no reason to believe that there had been coercion and the deceased had consistently expressed her wish to leave her house to the claimant, including on occasions when the claimant wasn’t present.

Because of the inherent improbability of undue influence these cases are notoriously difficult to succeed with, especially if the will has been drafted by an independent and suitably experienced will draftsman and even more so when that solicitor has taken the precaution of getting the deceased’s will witnessed by an independent medical professional in accordance with the so-called “golden rule”.

Read our first blog on Rea -v- Rea, published in September 2023 here.

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