Undue Influence – The Dire case of Rea -v- Rea
Undue Influence – The Dire case of Rea -v- Rea
The recent decision in the case of Rea -v- Rea reminds us that whilst it is difficult to challenge the validity of a will on the grounds of undue influence, particularly where an independent solicitor is involved in the drafting of the will, it is by no means impossible.
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, 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 will was a declaration in the following terms: –
“I DECLARE that my sons do not help with my care and there has 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”.
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 later will was drafted by a qualified and experienced solicitor who witnessed the will together with Anna’s 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 the witnesses to the will), the judge decided that Anna did have testamentary capacity and knew and approved of the terms of the later will.
He then went on to consider the issue of undue influence. The judge said that undue influence meant influence exercised either by coercion in the sense that the testators will must be overborne or by fraud, the burden of proving undue influence falling fairly and squarely on the shoulders of the sons. This was to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution all of which were legitimate.
The physical and mental strength of Anna were relevant factors in determining how much pressure was necessary as the will of a weak and ill person may be more easily overborne than that of a hale and hearty one. A ‘drip drip’ approach may be highly effective in sapping the will of the will maker. In that context, Anna had a number of health issues including being deaf in one ear (with poor hearing in the other), diabetes, chronic kidney disease, bilateral cataracts and from 2014 sciatica which rendered her wheelchair bound.
Although the relevant standard of proof is the balance of probabilities the judge said that as the allegation of undue influence was a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the deceased’s free will was over borne by coercion rather than any other explanation. The judge said that the court could find undue influence by drawing appropriate inferences from all of the circumstances of the case even in the absence of direct evidence. “It is in the nature of undue influence that it goes on when no one is looking”.
Having reviewed the evidence, the judge decided that despite the involvement of an experienced independent solicitor and the Deceased’s GP in the will making process, the counterclaim of undue influence succeeded. A number of factors were taken into account including Anna’s frailty and vulnerability, her dependence upon Rita, the fact that Rita had made arrangements for Anna to make the later will (in circumstances where Anna insisted that Rita should present at the meeting at which instructions were given) and that the creation of the new will was withheld from other family members until after Anna had died.
Also of significance was that this was a major change in Anna’s testamentary wishes which had previously stood unchanged for nearly 30 years. In terms of the Declaration in the will, the judge thought that this was not language that Anna would ever have used “rather it is Rita speaking through Anna”. This was, the judge said, “a case of undue influence exercised by coercion in the sense that Anna’s true will was over borne by Rita, but not by fraud”.
Although at the first trial the sons acted in person and at the second trial, they were represented by a barrister acting under the “Bar Direct Access Scheme” with 2 trials both lasting several days one has got to question the size of the overall costs compared to the value of the estate. A difficulty with will validity disputes is that at trial it is a binary outcome: the will is either valid or it isn’t. Mediating these disputes at probably considerably less cost enables the parties, with the help of a specialist mediator, to factor into their calculations not only the value of the estate but also the risks of litigation the outcome of which is never certain.