Wills and undue influence: lessons from Rea v Rea (2024)

Several weeks after the ruling judgment of Rea v Rea (2024), our litigation team reflects on its importance in establishing testamentary undue influence.

Requirements to create a will

In order to create a will, a testator (i.e. the person creating a will) must satisfy several requirements, which may vary depending on the contents of the will, the types of assets being transferred or gifted, and the potential complexities in creating a trust. 

At a very basic level, a will must be correctly executed by the testator and be witnessed by two independent individuals who are present together at the time of signing. Where a will is gifting or transferring property, it must also be executed as a deed. As for the contents of the will, it must be possible to identify the property being transferred or gifted, as well as each individual beneficiary's interest in the property. 

Potentially, the most important requirement to evidence when creating a will, however, is being able to ascertain the true intention of the testator. Did they mean to create a will and if so, do the terms reflect their intentions? It is therefore critical to consider a testator's words and conduct in the creation of their will, as well as the express terms of that will when assessing its validity.

The importance of assessing the intentions of a testator was recently evaluated in the landmark judgment of Rea v Rea (2024), where three sons of a testator challenged the validity of their mother's will, claiming she had been unduly influenced by their sister, who had taken unfair advantage of her position and coerced their mother into creating a new will which excluded them from jointly inheriting her most valuable asset, her £1m house in London. 

Undue influence 

Undue influence is a legal protection afforded to those who can prove that a person has taken unfair advantage of their position by abusing their influence over another. The concept of undue influence originates back to the nineteenth century and has gradually developed from the principle of duress, which originally sought to restrict the influence of physical coercion.

Undue influence, on the other hand, is more subtle in that it seeks to restrict the influence of non-physical coercion. The assessment of what does or does not constitute coercion in contrast to persuasion has been a focal issue for the court over the years, and it is within this grey area that the merits of an Undue Influence claim will succeed or fail.  

Coercion, as assessed by the court, must be distinguished from lawful influences, such as persuasion, appeals to the affection of close ties and relationships, the sentiment of gratitude for past service or pity for poverty (Hall v Hall (1869-72)). 

In scenarios where undue influence is established, an applicant must prove that an unwarranted pressure has overpowered the testator's own volition. As summarised in the case of Wingrove v Wingrove (1885) "It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do… that is undue influence". 

Contesting the validity of a will on account of the terms not reflecting a testator's intentions can be extremely difficult for an applicant for several reasons. 

Firstly, there is usually no direct evidence to demonstrate the actual coercion that may have influenced the testator. This point was notably summarised in Schrader v Schrader (2013): "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 when no-one is looking. That does not stop its being proved. The proof has to come, if at all from more circumstantial evidence". 

The weight and severity of circumstantial evidence can vary, however, and depending on the context surrounding the testator, certain forms of pressure, which in one circumstance may amount to coercion, may not in another. 

This subjective issue was further raised in the case of Wingrove v Wingrove (1885): "it may be in the grossest form, such as actual confinement or violence, or a person in the days or hours of life may become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness' sake, to do anything". 

Lastly, and quite possibly the most controversial, in order to satisfy the requirements to establish undue influence, it must be shown that the only hypothesis which is consistent with the facts is that the testator was coerced into creating the will. As affirmed by Lord Cranworth LC in Boyse v Rossborough (1857), "it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis". 

Undue influence is, therefore, a difficult protection to rely on. The burden of proof for establishing testamentary undue influence lies with the party seeking to disprove the validity of a will. They must demonstrate that on the balance of probabilities it was more likely more likely than not that the testator was coerced into writing (or rewriting) the will. 

With scenarios differing on the most subtle of differences, there is often a disparity of opinions and interpretations from judges, as seen in the contrasting judgments of Rea v Rea (2019), Rea v Rea (2023) and Rea v Rea (2024).

Background to Rea v Rea

Anna Rea, the testator in proceedings, died in 2016, naming her four children, Rita (the claimant), Remo, Nino and David (the defendants) as the beneficiaries in her will. Although Anna originally signed a simple one-page will in 1986, in 2015 she executed a new will, gifting her most substantial asset, her house in south London, to Rita as opposed to the terms of the 1986 will, which declared her estate to be equally divided between her four children. 

Anna had suffered from several health issues during the last 20 years of her life. In light of Anna's disabilities, Rita moved in with her mother in 2009 to act as her carer. Anna's respective relationships with three of her children, namely, Remo, Nino and David deteriorated between 2009 and 2015 on account of their unwillingness to support or contribute to their mother's care. Anna's frustration was duly recorded in her 2015 will, where she affirmed:

"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".

Crucially, the 2015 will was drafted by a specialist solicitor who was a member of two highly regarded associations, and the 2015 will was similarly witnessed by Anna's longstanding GP. 

2019 - Trial

Following her mother's death, Rita issued proceedings on 5 July 2017, seeking the court to decree (validate) probate of the 2015 will rather than the 1986 will. In doing so, Rita would be appointed executor of her mother's estate and able to perform her mother's wishes.  

Remo, Nino and David challenged Rita's application and the validity of the 2015 will, alleging that their mother lacked capacity and that she did not know or approve the contents of the 2015 will. It was the three brothers' position that Rita exerted undue influence over their mother and that the 2015 will was invalid by reason of fraudulent calumny.

Following a three-day trial in September 2019, the judge considered several pieces of evidence, including Anna's GP's attendance note (evaluating her capacity), as well as the GP's oral submissions, and concluded that Remo, Nino and David's undue influence counterclaim had fallen well short of the requirements needed to succeed. Accordingly, the judged ruled in Rita's favour and gave instructions for the 2015 will to be admitted to probate.

Although the three brothers' initial appeal was rejected in 2021, their subsequent appeal was granted in 2022 when the court acknowledged that a procedural error had "caused serious prejudice" in that the defendant's counsel was unable to cross-examine Rita on several issues. A retrial was, therefore, scheduled for 2023. 

2023 – High Court Decision

The matter was readmitted to the High Court, with the matter coming before the High Court in July 2023. Upon reviewing the evidence, the High Court judge reversed the previous ruling, stating that although at first sight, it may seem a surprising conclusion given the GP and solicitors involvement in creating the 2015 will, they were nevertheless satisfied that "the facts are consistent only with Rita having procured the making and execution of the 2015 will by the exercise of undue influence over her mother". 

Factors the judge considered included the following: 

1. The judge acknowledged they found Rita to be argumentative and forceful, whereas Anna was frail, vulnerable and her quality of life was limited.
    
2. Anna was entirely dependent on Rita and despite Anna informing her solicitor that she wanted Rita present during a meeting where the solicitor advised her against Rita's inclusion, the judge considered this assertion to mean Anna "was in thrall to her only daughter, and carer".
    
3. As the 2015 will was silent on several issues such as directions for her remains to be cremated despite being thorough in length and complexity, the judge questioned the likeliness of the terms reflecting Anna's true intentions.
    
4. Although Rita claimed to be unaware of her mother's intention to change the terms of the 1986 will, the judge found this to be improbable due to an attendance note made by the solicitor which stated Anna knew that Rita did not want to discuss the inheritance tax that will have to be paid on her mother's estate, before Rita acknowledged having knowledge of the 2015 will.
    
5. The judge found it suspicious that the 2015 will was created only several days after David and Nino withdrew their assistance to Rita in caring for Anna.
    
6. The judge did not believe the language contained in Clause 11 of the 2015 will to be consistent with that of Anna. Instead, he suggested it was "Rita, speaking through Anna". 
    
7. The judge believed Anna to be mistaken or mislead in believing Rita had nothing in contrast to her brothers who had stable jobs and assets, when Rita owned a flat in East Ham worth £186,000.00 after settling her debts.
    
8. The judge did not believe Rita's explanation as for why either her or her mother did not disclose the 2015 will to her brothers until after Anna's death. Rita claimed that neither wanted to upset her brothers and that she forgot about it. 

Rita's counsel successfully appealed the judgment by suggesting the judge was wrong to find in favour of the defendants as the evidence considered did not satisfy the requirements to establish undue influence. 

2024 – Court of Appeal Decision

On 1 February 2024, the matter was heard by the Court of Appeal took place. Upon reviewing the evidence, on 23 February 2024 the final judgment was handed down by the three judges, who confirmed that the test for undue influence was not met, and Rita was therefore successful in her claim. 

In considering the factors assessed in the 2023 judgment: 

1. The judges agreed that Anna was frail but not vulnerable. In evaluating Anna's behaviour in drafting the 2015 will, as well as the GP's mental capacity assessment, the judges were "entirely satisfied that Rita had demonstrated that her mother had testamentary capacity". Whilst the judges noted Rita's argumentative and forceful nature, they agreed that people with such personalities do not routinely exercise undue influence. 
    
2. Whilst the judges noted Anna's dependence on Rita, they did not agree that their relationship constituted evidence for undue influence. Alternatively, the defendant's lack of care for their mother would constitute evidence for supporting the validity of the 2015 will.
    
3. The judges did not find the timing of 2015 will to be suspicious. Although the 1986 will had stood unaltered for 30 years, the judges suggested that the lapse in time could have provided a good reason to review its provisions, especially in light of Rita's care and her brother's lack of care to Anna.
    
4. Although Rita was present in meetings with Anna and her solicitor where it was advised she was not, the judges agreed it is commonplace for elderly people to ask their children for help in assisting them in important meetings. It was also noted that whilst Rita was present on that date, she was not on the day of execution, where the terms of the 2015 will were further amended. 
    
5. Although the judges noted the previous judge's views that the 2015 will was silent on several issues and that the language contained within certain clauses within the will was not consistent with Anna's own words, the previous judge was, however, required to cross-examine Rita, which they did not. Furthermore, Anna's solicitor confirmed that the clauses within the 2015 will reflected Anna's wishes. 
    
6. The judges did not agree that Anna's misunderstanding of Rita's partial ownership of a property evidenced undue influence. On the contrary, the judges suggested that this would support Anna's wish to give her property to Rita. As for Rita's desire to secure her mother's property for her own, this motive could be used as support for either coercion or persuasion. Therefore, the test for undue influence could not be met as it was not the only hypothesis consistent with the facts.
    
7. The judges disagreed with the previous judge, who did not accept Rita's explanation for why either she or her mother did not disclose the 2015 will to her brothers until after Anna's death. Furthermore, Anna's wish for the 2015 will to "only become known to [Remo, Nino and David] after Anna's death because that it would make it more difficult for them to challenge the 2015 will" was considered entirely consistent with Rita persuading and not coercing her mother to leave Rita the property. 

Conclusions

The case of Rea v Rea is a stark reminder that in order to satisfy the considerably high bar in establishing undue influence, parties must ensure that the evidence put forward is only consistent with the hypothesis that a testator was coerced into creating a will. 

Although either side may provide conflicting narratives to support or disprove circumstantial evidence, to succeed in establishing undue influence, a party must demonstrate that it was more likely than not that a testator was coerced and not persuaded. 

The subtle difficulty in reviewing evidence of this kind and demonstrating that the facts are or are not consistent with this test is considerably nuanced and requires expert support. 

SO Legal regularly assists clients in testamentary disputes. Please contact our litigation solicitors if you need advice on challenging a will or any other contentious probate matter.