Rea v Rea

Undue influence: more probable than not?

On 23 February 2024, the Court of Appeal handed down judgment in the case of Rea v Rea, a long-running family dispute centring around the validity of the Will of Anna Rea, who died in July 2016, aged 85. The latest decision is the result of a hard-fought appeal brought by Anna’s daughter, Rita, who challenged the 2023 decision of the High Court which found that Anna’s 2015 Will was invalid as a result of undue influence exercised over her by Rita.

The claim

The original claim saw Rita seeking to prove her mother’s 2015 Will, which left the largest asset in the estate (Anna’s house) to Rita with the remainder of the estate divided equally between Rita and her three brothers. The 2015 Will was drafted by a experienced solicitor and was witnessed by her GP. She also included a statement explaining that the reason for the larger gift to Rita was because “she has taken care of me for all these years” while the lesser provision for her other children was because “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”. Why shouldn’t a mother benefit a loving and caring daughter in these circumstances you might ask? However, Anna’s sons disagreed and raised a counterclaim challenging the validity of their mother’s Will on not one but four grounds; lack of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny.

The High Court’s decision: undue influence established

Having heard the evidence, the High Court was satisfied that Anna had the capacity to make the 2015 Will and had known and approved its contents. However, the Judge found that the terms of the Will were “Rita speaking through Anna” and that it had been made as a result of undue influence. In making this ruling, the Judge placed particular emphasis on Anna’s frailty and vulnerability and the fact that she was entirely dependent on Rita, who made all the arrangements for Anna to give instructions for the 2015 Will. In this context, the Judge was unpersuaded that the involvement of an experienced solicitor and Anna’s GP was enough to counteract the coercion which he found had been exercised by Rita.

The Appeal: was coercion the most probable possibility?

Unsurprisingly, Rita was not happy with the High Court’s decision and so, despite a trial, a re-trial and some very strong words of encouragement from the Court of Appeal to the parties to engage in mediation, Rita and her brothers found themselves in the Court of Appeal in February this year, having been unable to reach a settlement of the claim.

In what some are referring to as a landmark ruling in the field of contentious probate, the Court of Appeal overturned the High Court’s decision confirming that in order to establish undue influence “the circumstances must be such that undue influence is more probable than any other hypothesis” and that “if another possibility is just as likely, undue influence will not have been established”. In this case, the fact that Anna believed that her sons had abandoned her was a plausible reason for her making the 2015 Will and the Court of Appeal found that the High Court had failed to take this into consideration when making its decision. Coercion was not the probable possibility for Anna doing what she did and the validity of the 2015 Will was upheld, hailing victory for Rita.

What can we learn from this decision?

Firstly, the decision of the Court of Appeal demonstrates, as we all know, that factual evidence will be key in any claim relating to undue influence. In this case, and despite, the High Court Judge having found Rita to be an unreliable and untruthful witness, and the Judges in the higher Court not having heard her evidence first-hand, the Court of Appeal was not satisfied that there was any direct evidence of coercion and nor was there any basis to make an inference that coercion had been present, or more probable than any other possibility. What was ‘inherently more probable’ was that Rita had persuaded her mother to make the 2015 Will and this was simply not enough for a claim in undue influence to succeed.

Secondly, the Court of Appeal’s judgment reminds us that the evidence of professionals, both legal and professional, should be given due weight and consideration, assuming of course that there are no grounds to question their reliability as witnesses. This will come as no surprise given that the role of these professionals in the Will making process is, undoubtedly, to safeguard against the preparation of a testamentary document which will later be subject to challenge or a finding of invalidity.

If you have any concerns about the circumstances in which a will has been prepared, our Contentious Trusts & Probate Team can assist.