The Case Of Rea v Rea – Challenging A Will – Undue Influence

Rea v Rea & Ors [2023] EWHC 1901 (Ch)

Case background

In the matter of the estate of Anna Rea Deceased judgement was handed down on 26 July this year after a re-trial of a contested probate claim.

In the earlier trial, the validity of the 2015 Will had been challenged on the grounds of a lack of testamentary capacity or knowledge and approval, undue influence, and fraudulent calumny.  All of which were dismissed.

Permission for an appeal was granted over a question of whether the trial had been unfair. The appeal was dismissed but concluded that a mistake had been made at trial by restricting the Defendant’s cross-examination of the Claimant on certain key issues. Permission was also granted for a second appeal to consider whether it was necessary to show that the trial Judge was hostile to or biased against one of the parties before it could be said that a trial was unfair. The second appeal was allowed which set aside the previous orders and ordered a new trial of the matter.

This case related to a dispute between four siblings and the Will of their Mother who left her house to her only Daughter and her residue to her four children in equal shares. Her Sons claimed that the 2015 Will, which was prepared by a solicitor, could not have been understood or represented the wishes of their Mother and that their Sister had exerted undue influence and fraudulent calumny over her, causing their Mother to fundamentally change her intentions from her 1986 Will which had left her entire estate in equal shares to her four children.

The 2015 Will itself recorded that the gift of the property to her Daughter was because she had taken care of her for all these years and contained a declaration that her Sons did not help with her care, and a challenge to the estate by them should be defended as she did not wish them to share in her estate save for what was in her Will.

The retrial Judge found that the Deceased had the required testamentary capacity to make her 2015 Will and had no disorder of the mind which had poisoned her affections. He found that the Deceased knew and approved the terms of her Will, which was entirely clear from the uncontradicted evidence of the Solicitor and the Doctor. Fraudulent calumny was also not found.

Therefore, the validity of the 2015 Will stood or fell on the sole ground of undue influence which was proved. The Court found the Claimant had coerced the Deceased into making the Will, in that she had overpowered her volition without convincing her judgement. The 2015 Will was therefore pronounced against in favour of the 1986 Will.

Summary

Costs:

In this case, the Judge felt that the ordering of a re-trial was a tragedy for the family, as the tangible benefits of the relatively modest estate would be seriously depleted or exhausted completely by the legal costs of the trial and the appeal. He strongly urged the family to do everything possible to reach a consensual settlement, however, it proved not possible for them to do this. This case acts as a warning that in all circumstances and in particular where an estate is relatively modest, settlement outside of a trial should be actively sought.

Witness evidence:

The Judge did not find the Claimant a reliable or satisfactory witness and could not safely accept her evidence unless it was corroborated by other reliable evidence or was contrary to her own interests. He found there was a complete lack of candour about her evidence and did not accept her evidence as to the circumstances in which the 2015 Will came to be made.

The Solicitor had made detailed and contemporaneous notes, addressed capacity and undue influence, and found none. A doctor had acted as a witness to the Will and confirmed that the Deceased had the capacity and was acting of her own free Will.

The Judge found the Defendant’s evidence consisted of them creating a story in their own minds and presenting to the Court a series of false narratives with the deliberate intention of blackening the Claimant’s character and sanitising their failure to look after their Mother during the last year of her life.

The findings, in this case, were heavily based on the Judge’s view on the witness’s conduct and their evidence and illustrate that there is significant risk in going to trial where there is reliance on witness evidence rather than contemporaneous documentary or independent evidence.

Undue influence:

In this case, it was acknowledged that a Court can find undue influence by drawing appropriate inferences from all the circumstances of the case, even in the absence of direct evidence of undue influence. It is a common feature of undue influence that there is no direct evidence and that it goes on when no one is looking. That does not stop it from being proved but such proof has to come from circumstantial evidence. It was recognised that it can never be known with absolute certainty what went on behind closed doors, but it is not enough to prove that the facts are consistent with the hypothesis of undue influence just that the facts are inconsistent with any other hypothesis.

The reasoning for the finding of undue influence in this case was on eight points:

It is of interest to note that the Judge found that the involvement of the Solicitor and Doctor did nothing to dispel or counteract the undue influence exercised by the Claimant.

Whilst it is acknowledged that undue influence is an extremely hard ground to prove due to the lack of direct evidence, a claim should not be dismissed because of this and where it can be shown that the facts are inconsistent with any other hypothesis, should be considered and pursued.