Will successfully overturned on the grounds of undue influence: The Estate of Anna Rea Deceased

On 26 July 2023, Judgment was handed down by His Honour Judge Hodge KC on the re-trial of the case of Rea v Rea [2023] EWHC 1901 (Ch).  Mrs Anna Rea died on 26 July 2016 at the age of 88.  Anna was divorced and had three sons and one daughter from her marriage, namely: Rita, Remo, Nino and David. 

Anna made a Will on 29 May 1986 (the “1986 Will”).  This was a straightforward, one page document prepared by a solicitor shortly after Anna’s divorce.  It split Anna’s estate equally between her four children. 

On 7 December 2015, Anna made a second Will (the “2015 Will”).  This was prepared by a qualified and experienced solicitor who complied with the golden rule in ensuring that Anna’s capacity was confirmed by her general practitioner who was additionally a witness to the 2015 Will. 

The 2015 Will gifted Anna’s property (the “Property”) which was her most valuable asset to Rita and split the residue equally between the four children.  The 2015 Will contained a declaration stating: “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 dependant on me, and I do not wish for them to share in my estate save what I have stated in this Will”.

The original claim by Rita seeking an Order as to the validity of the 2015 Will took place in September 2019 and Deputy Master Arkush found the 2015 Will to be valid.  Upon a number of applications an appeal was allowed on the basis that the Deputy Master had made an error in preventing cross-examination, which caused serious prejudice to the sons resulting in the trial being unfair.  It was acknowledged that this was a “most unfortunate result” having regard to the emotional stress for the parties, irrecoverable costs already incurred and further inevitable irrecoverable costs to be incurred.  The parties were strongly urged “to do everything possible to reach a consensual settlement of their differences rather than fight out a re-trial”.  Sadly, an amicable resolution was not forthcoming.

The sons challenged the validity of the 2015 Will on the following grounds:  want of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny practiced by Rita on Anna. 

The case includes detailed consideration of the applicable tests with regard to mental capacity, knowledge and approval, undue influence and fraudulent calumny.  I will not reiterate these here, but they serve as a useful reminder. 

The Position of the Sons

The sticking point for the sons was that for almost 30 years their mother’s intention had been for her four children to share her estate equally and yet no attempt had been made to communicate the significant changes to her Will to any of them.  They simply could not accept this.

They also felt that Rita’s account of the making of the 2015 Will was so inherently unlikely that it should be discounted altogether.  Although there was no direct evidence of undue influence, they argued that the Court should find on the balance of probabilities that the 2015 Will “was not the product of Anna’s own independent instructions to her solicitor, but rather was the progeny of a process of undue influence whereby Rita had poisoned her mother’s mind against her brothers”.

The Decision

His Honour Judge Hodge KC made the following findings:

1. He was entirely satisfied that Anna had the requisite testamentary capacity at the time she gave instructions for and executed the 2015 Will.
   
   
2. Anna was not suffering from any disorder of the mind which poisoned her affections, perverted her sense of right and wrong or prevented the proper exercise of her natural faculties. He commented that this was an entirely separate and discrete issue from whether Anna’s mind had been poisoned by Rita, which went to the question of undue influence rather than testamentary capacity. 
   
   
3. Although the declaration within the 2015 Will was harsh in the eyes of the sons, it was an assessment that was open to Anna as a matter of historical fact.
   
   
4. Anna knew and approved of the terms of the 2015 Will.
   
   
5. Any challenge to the validity of the 2015 Will was dependant solely on the grounds of undue influence, with the burden resting squarely upon the sons to make out a proper challenge under that head. In doing so, the sons must prove that Rita so coerced Anna as to overpower her volition without convincing her judgment and that the facts are inconsistent with any other hypothesis. 
   
   
6. Ultimately, the sons established undue influence to the required standard on the basis of the following key factors:

• Anna was frail and vulnerable. She was wheelchair bound, hard of hearing and required constant care and attention.  Anna’s quality of life was limited in stark contrast to Rita’s argumentative and forceful personality alongside her forceful, physical presence. 
  
  
• Anna was entirely dependant upon Rita. This was evidenced by her refusal to accept a solicitor’s recommendation that Rita should not be present when instructions for her Will were given. 
  
  
• The Judge could not accept Rita’s account as to the circumstances in which the 2015 Will came to be made.
  
  
• The Will was made only a matter of days after David and Nino withdrew their assistance to Rita in caring for Anna.
  
  
• It was Rita who made arrangements for Anna to make the 2015 Will.
  
  
• The 2015 Will effected a major change in wishes which had stood unaltered for nearly 30 years by substantially disinheriting Anna’s three sons. The language of the declaration in the Will did not appear to be language that Anna would have used and instead seemed to be Rita speaking through Anna. 
  
  
• There were serious concerns with regard to Rita’s motives. Rita had been advised to sell her flat in order to repay some £33,000.00 in overpaid housing benefit and had good reason to want to retain a roof over her head. 
  
  
• The failure of Anna and Rita to tell anyone about the 2015 Will before Anna’s death. The only conceivable explanation being that Rita wanted to ensure that it would be more difficult for her brothers to challenge the 2015 Will. 
  
  

It was found that the above factors pointed “inexorably to the conclusion that Rita had pressured Anna into making a new Will, leaving the house to Rita, not by convincing her mother that this was the right thing to do, but by applying some form of improper influence over her to procure the testamentary gift of the house in her favour, cutting out the sons who had stood to share equally in the estate for almost 30 years”.  It was found that there was solid and reliable evidence to demonstrate that “the effect of Rita’s coercion was that Anna made a Will that did not reflect her true testamentary intentions, which Rita had overborne.”  His Honour Judge Hodge KC made a finding of undue influence exercised by coercion, but not by fraud. 

Interesting take aways from the Judgment

1. Where there is excessive interference in evidence by a Trial Judge (however well meaning) if the result is that the trial is unfair, then this may be grounds for a re-trial.
2. The 2015 Will was not saved by the fact that it was prepared by an experienced solicitor who complied with the golden rule.
   
   
3. If a Will draftsman does nothing more than leave a client to “self-certify” that they are acting free of pressure/influence, that is unlikely to be enough to counteract or dispel evidence to the contrary. If a Will draftsman has concerns about undue influence, then further questioning should be considered to explore the point. 
   
   
4. The Judge’s comments in respect of a number of the witnesses were scathing. There was found to be “a complete lack of candour about Rita’s evidence”.  This illustrates the risks of litigation and the lack of control as to how witness evidence is perceived.  Whilst giving evidence, Rita came across as “argumentative and forceful” “quick to get angry, easily wound up and prone to expressions of irritation and frustration”.  This demonstrates the unavoidable human element when matters proceed to trial. 
   
   
5. In determining how much pressure is required to overbear the Will of a testator, it is well to remember that “the Will of a weak and ill person may be more easily overborne than that of a hale and hearty one”. It was relevant that Anna was a frail and sick person when she executed the 2015 Will.  Where there is dependency, this may give rise to concern. 
   
   
6. Where someone else other than the testator makes arrangements for the preparation of a Will, this may be cause for concern.
   
   
7. Where someone has longstanding testamentary wishes (here for nearly 30 years) and those wishes are being substantially altered, this should be fully and carefully explored with the testator.
   
   
8. It is useful to paint a picture for the Court of the character and mannerisms of the deceased if these are contrary to the feel of the testamentary document. Here, it was found that the language of the declaration in the Will was unlikely to have been used by Anna and instead appeared to be “Rita speaking through Anna”. 
   
   
9. It is relevant to consider the motive of any person thought to be exercising undue influence. Here Rita had significant debts to meet which led her to sell her home and have concerns regarding a roof over her head. 
   
   
10. For fraudulent calumny to take effect, the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether or not they are. Rita was found to genuinely believe that her brothers had abandoned the care of their mother, making fraudulent calumny inapplicable.

This is an interesting case being a rare example of a successful validity claim on the grounds of undue influence.  It provides a useful reminder of the applicable tests with regard to the main grounds for challenging a Will.  It also clearly demonstrates the risks of litigation.

From the point of view of the private client professional, it should encourage serious consideration as to what steps may be required to rule out any improper influence in circumstances where a testator is making an unusual Will, especially where this represents a significant departure from previously long held testamentary wishes.