Challenging a will

Family rivalry

Families often fall out and have disagreements over what has been left to them in a will after a loved one sadly dies. There can be sibling rivalry because one or more siblings may believe that what has been left to them is unfair or is not a true reflection of what their loved one would have wanted.

It is sometimes the case that a loved one may have been unduly influenced in some way when making their will or that they lacked the mental capacity at the time of making their will.

In the case of Rea v Rea, the High Court had determined that a will was invalid on the grounds of undue influence, despite a solicitor’s and medical professional’s opinion that the deceased was not coerced.

That decision, which itself was a retrial of an initial decision made and overturned because the judge had unfairly refused to allow the defendants to cross examine the claimant, was appealed. In February 2024 the Court of Appeal overturned the decision, concluding that the will was in fact valid and that the deceased was not coerced into changing it by her daughter.

This was a strong message from the Court of Appeal that, to prove undue influence in a probate claim, the circumstances must be that the undue influence was more probable than any other hypothesis. This is a high bar to set, as can been seen when considering the fact of the case below.

Background

Anna Rea, the deceased, had a daughter, Rita, and three sons Remo, Nino and David. In 1986 Anna made a will appointing Remo her executor, dividing her estate equally between her children.

In 2009 Anna suffered a serious heart attack. Rita moved in with her and became her principal carer.

In 2015 Anna changed her will, leaving her house solely to Rita (“the 2015 will”) with the residue being divided equally between her four children. Her reason given for doing this was because Rita had moved in to take care of her and her sons had abandoned her. The will was prepared by solicitors. A doctor carried out a capacity test and found Anna had capacity and there was no sign of her being coerced.

It was not until after Anna had died that her sons discovered their mother’s will had been changed. They challenged the 2015 will, arguing that their sister had unduly influenced their mother and that their mother, who was frail at the time, lacked the mental capacity to make changes to her will.

The first decision on retrial:

The High Court judge found that Anna had the requisite testamentary capacity to make a will and that she knew and approved its contents. However, the judge found that Rita had pressured the deceased into make the new will by applying undue influence over her. Some relevant factors taken into consideration by the judge were:

• Anna’s frailty and dependency on Rita
• That Rita had made the arrangements for Anna to change her will
• The dramatic departure from the 1986 will
• The fact that existence of the 2015 will was not disclosed until after Anna’s death.

The judge ordered revocation of the 2015 will in favour of the 1986 will.

The appeal:

The Court of Appeal overturned that decision and were unanimous in finding for the validity of the 2015 will. The court noted that Rita had a “forceful personality” but there was no direct evidence of coercion exerted by her over the deceased.

The court stated that, to prove coercion or undue influence in a probate claim, the circumstances must be that the undue influence was more probable than any other possibility. The court commented that there was a perfectly rational basis for leaving the property to Rita as she had lived there and looked after the deceased for six years.

The judgment shows the importance of the solicitors’ and medical experts’ opinions. The solicitor preparing the will believed the deceased had capacity and was not under any influence. The court found the solicitor was competent, and a reliable and honest witness and as such took her comments into consideration when reaching their decision.

The case underlines how difficult it is to succeed with an undue influence case, particularly where the will is prepared by an experienced solicitor who has taken the precaution of having the will witnessed by a medical professional.