Red Flags and “Proving” Undue Influence

Rea v Rea Court of Appeal

Judgment handed down remotely on 23 February 2024

A claim based on Undue Influence will need to establish that the testator of a Will was coerced by another into changing their Will to benefit the coercive party or another person. It is perhaps one of the most difficult (and costly) approaches to challenging a will and its contents, although each case is fact specific.

The serious nature of the allegations involved in contesting a Will on the grounds of Undue Influence mean that strong, compelling evidence to support the claim is required. This is notoriously difficult because the primary witness – the deceased – is unable to assist the court and coercion will often have only taken place in private.

Before we consider Rea in more detail, perhaps we should have a look at a couple of other examples.

In the case of Re Ho Chau Ying Chin [2019] EWHC 523 (Ch) the Will of a mother, was contested by three of five daughters, who had been disinherited in favour of their only brother.

Ho Chin had written her Will in 2009, stating she wished to split her estate equally between all her children. She had also written a letter saying that she “had always been very fair to all of her children”. Following a stroke, she became dependent on her husband, who held the traditional view that his son alone, should receive an inheritance. In 2011, Ho Chin executed a new Will leaving the majority of her estate to her son.

In 2015, after Ho Chin’s death, three of her daughters challenged the validity of their mother’s Will. The court found that Ho chin had been unduly pressured to change her Will having been worn down over the years by her husband.

However, as in the case of Schrader v Schrader (2013), the Court can rely on circumstantial evidence and the quality of the evidence available, when making a decision.

In the case of Schrader, Mrs Schrader had two sons. She left the main asset of her estate to only one of her sons (“A”) in her last Will. In a preceding Will, she had divided her estate between her two sons equally. The court concluded that A had unduly influenced Mrs Schrader to change her Will, despite the absence of any evidence of coercion. The court considered A’s forceful personality and his involvement in the preparation of the Will as sufficient evidence to support its decision.

It is worth noting that Undue Influence is distinct from ‘mere persuasion’. For example, someone consistently talking about imminent insolvency and the need to receive funds from an estate to pay off their debts would not amount to Undue Influence.

Now back to Rea v Rea and others [2024] EWCA Civ169.

The Deceased’s will made in 2015 left everything to her daughter who had cared for her for a number of years, including living with her after her mother suffering a heart attack. The mother gave nothing to her three sons. There were lots of warning signs (red flags) about the making of the will and the background to it, including the daughter arranging the interview with the solicitor who made the will, attending at the meeting and sometimes (according to the solicitor’s notes) even intervening in the meeting with comments. The testator was frail, wheelchair bound and hard of hearing, vulnerable and entirely dependent on her daughter. The solicitor requested that the testator be examined by her doctor to assess mental capacity, which was duly done. After the mother passed away, the three sons became aware of the existence of the 2015 will and at trial the issues to be determined were capacity, fraudulent calumny, knowledge and approval of the content of the will and undue influence. The trial judge was satisfied on all matters except undue influence and gave judgment pronouncing against the 2015 will in favour of an earlier will in 1986, being satisfied that taken together, the 2015 will was made by coercion from the daughter (but not fraud). The daughter, Rita, appealed.

It is important to note here that the (very high) burden of proving undue influence is on those alleging it (in this case the sons) and we should also remind ourselves that “persuasion” can be acceptable, as opposed to “coercion” and also noteworthy to say that undue influence can be demonstrated without any direct evidence of it. In Schrader (above) Mann J said:

“It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence.”

*(An appellate Court will not interfere merely because it might have arrived at a different conclusion. It will do so only if it considers the decision under appeal to have been an unreasonable one or wrong as a result of some identifiable flaw in reasoning, “such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion” (see e.g. R (R) v Chief Constable of Greater Manchester [2018] 1 WLR 4079, paragraph 64, and also In re Sprintroom Ltd [2019] 2 BCLC 617, paragraphs 76 and 77).

The appeal was allowed, Lord Justice Newey summarising, after a lengthy consideration of the issues – “In all the circumstances, it seems to me, with respect, that the Judge was mistaken in finding there to have been undue influence. I do not think the evidence entitled him to arrive at that conclusion. Undue influence in this context connotes coercion such as to “overpower the volition without convincing the judgment”, where the testator’s volition is “overborne and subjected to the domination of another” and the testator would say if he could speak his wishes, “this is not my wish, but I must do it”. This, to my mind, is a case in which it is appropriate to proceed on the basis that such conduct is inherently unlikely. Further, there was in the present case no direct evidence of coercion and, in my view, it could not reasonably be found….”

Lessons

Challenging a will can be daunting, upsetting and very expensive. It often comes at a time when feelings are low, and you are at your most vulnerable. Here, even though there were many features present which one looks towards in seeking to establish undue influence and indeed the judge at first instance found so, it is vital to get early specialist professional advice so that you can make an informed decision about your choices.

For advice on contentious trust and probate claims contact Patrick Farrington on pfarrington@keelys.co.uk or call on 01543 420000.