Part 1: Influencing the future: What next for Undue Influence in Probate?

Alexander Learmonth KC

This is the first of two related articles about undue influence in the probate context, which will explore, first, this year’s important decision of the Court of Appeal, the case of Rea v Rea;[1] and whether, in the light of that case, the current law as it is understood is fit purpose. Secondly, it will consider the proposals contained in the Law Commission’s consultation paper,[2] which is due to reach fruition early next year with a final report on reforming the law of wills and a draft bill, and whether they are a workable answer to the issues in this area of law. Thirdly, it will consider what in the author’s view might be done to improve the law undue influence, whether that be through legislation on the Law Commission’s recommendation, or by way of judicial manoeuvre.
This first part of the article deals with the first of those topics.
The facts of Rea v Rea are quite typical of a contentious probate dispute. Mrs Rea – Anna – died in July 2016. She was elderly, immobile, and reliant on her daughter, Rita, and a carer, who both lived with her. She had made the contested will in 2015, and left her biggest asset by far, her house in Tooting, London, to her daughter, Rita, and the residuary estate in equal shares between her four children, Rita, and her three sons David, Nino and Remo. This was very different from the previous will from 1986, which divided the whole estate between the four children. Nina said this was because her sons had ‘abandoned her’; this was sort-of-true – one of them lived abroad, and the other two had recently said they would no longer stick to the timetable of visits they had previously agreed. These sibling quarrels about caring responsibilities are of course quite typical in such cases.
Despite its fairly standard facts, it had a troubled procedural history, taking 8 years to reach a conclusion. Rita brought a claim to propound the will, which the brothers resisted on various grounds. Rita won, but following a series of appeals, a retrial was ordered, which went before His Honour Judge Hodge KC in July 2023. He found the will invalid on one ground only: undue influence. Then of course Rita appealed: and the Court of Appeal allowed her appeal, on the basis that Judge Hodge was not entitled to find undue influence on the basis of the evidence before him. In July this year, the Supreme Court refused permission to appeal.
A successful appeal on a finding of fact after trial is rare, especially in the case of such an experienced chancery judge as HHJ Hodge KC. How could an appeal court think he had got it so wrong?
Rita’s evidence was that she had had little or nothing to do with the making of the 2015 will. A familiar story: Anna told her she wanted to update her will, but in relation to funeral wishes only, and asked her to make the appointment with a solicitor. Anna asked her to attend the meeting. Only then did Rita find out that Anna wanted to leave the house to her, because she didn’t want Rita to be made homeless (she was in the process of selling her house), and because she didn’t want the sons getting it. The experienced solicitor noticed no problems with her English, her hearing, or her understanding, but advised that a capacity test be taken, to be on the safe side. The GP assessed her and found her to have capacity, Anna explaining to the GP that her sons had given up on her, and that they had their own houses and jobs. The GP and the solicitor then supervised the will’s execution at a further 50-minute meeting – the ‘Golden Rule’ being followed to the letter. Neither GP nor solicitor saw any signs of undue influence. The live-in carer also described Anna as strong-minded, said that she had never witnessed Rita abuse her mother, and confirmed that Anna was upset with her sons.
But the judge found that Rita had lied; the solicitor’s notes made it clear that there had had been far more discussion about the will, and more intervention in the meeting than Rita admitted to. The judge was also critical of her for doing nothing to correct Anna, when she said her sons had not cared for her at all – David and Nino had each visited only a few days earlier. The judge also found Rita to have a ‘forceful’ personality, and, I infer, a strong sense of entitlement. And her evidence about why she had not suggested that Anna should tell the brothers about the new will was disbelieved.
The judge was satisfied that Anna Rea had capacity; her statement about her sons abandoning her was perhaps harsh, but certainly not irrational. And evidence of the solicitor and the GP clear showed she knew and approved the will, given her repeated instructions that the house should go to Rita, not her sons, as the will duly provided.
But the judge found Rita had unduly influenced her mother, in the probate sense, meaning “coercion”; in other words, that she had “overpowered her volition without convincing her judgment”. The judge accepted that there was no direct evidence of any pressure being applied; he drew an inference from the circumstantial evidence. He identified eight factors:
1. Anna was frail and vulnerable;
2. She was dependent on Rita;
3. Rita had lied about their previous discussions about the will and involvement;
4. The fact that will was made so soon after David and Nino had withdrawn their assistance with their mother’s care;
5. The fact that Rita made the appointment with the solicitor and that Anna had insisted she be present at it;
6. The dramatic change of testamentary intentions after 30 years;
7. The fact that Rita had another flat, which she was in the process of selling, but which Anna may not have been aware of; and
8. The failure by Anna or Rita to inform the brothers about the new will until after Anna’s death.
To that list, one might also add the finding as to Rita’s forceful personality.
The judge felt that these factors, in combination, “all point inexorably to the conclusion that Rita had pressured Anna into making a new will”, and so held.
But when one looks at this list of factors, one recognises all but two of them as fairly common features of will-making:
1. Wills are often made by frail and vulnerable people;
2. They are often made in favour of those on whom the testator is dependent, such as the daughter who lives with them;
3. Testators often ask that person to book a solicitor for them, and often want to be accompanied in the meeting itself;
4. A new will after 30 years is very likely to be in different terms from the previous one;
5. The fact that the new will comes shortly after one of the events that is said to have motivated the change of intention – in this case, the sons’ decision not to carry on with the previous care regime – is hardly remarkable;
6. And when a parent cuts down a child’s inheritance in a new will, they rarely announce that to them, particular if that is due to a grievance.
So those factors can at worst set out a situation within which undue influence is perhaps possible, but do not indicate a situation in which undue influence is more probable than not. And similarly, as Newey LJ observed, people with argumentative or forceful personalities might be capable of exercising undue influence, but that doesn’t mean they are likely to do so.
It lacked the additional factors mentioned in last year’s similar case of Jones v Jones,[3] where HHJ Jarman KC found the daughter actively sought to isolate her mother, and reacted angrily, in front of her mother, to her uncle’s advice that she should divide her estate equally, and where no solicitor was involved.
So the only unusual factors of this case were Rita’s lies in evidence, and the fact she was selling her own flat at the time. But even these factors could have had a more innocent explanation than undue influence, as the Court of Appeal explained. Undue influence means coercion, but there is nothing legally wrong with a beneficiary wanting to benefit more, or with a beneficiary exercising persuasion on a testator to get that. That has been clear since Hall v Hall,[4] where the court pointed out that, “all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, — these are all legitimate, and may be fairly pressed on a testator”. Note the word “pressed”, which is found in other old cases.[5] Pressing persuasion is acceptable. But the exercise of “pressure” was all that HHJ Hodge had found Rita exercised on Rita.
No doubt the sons’ withdrawal from Anna’s care regime gave Rita a fact she could use to persuade her mother to change her will, but it would not have been unlawful to do so. The fact Rita was selling her flat also gave her a particular motive for wanting to be left a house, but does not show that she must have used coercion rather than mere persuasion. Rita’s false evidence about her involvement in the process could, in the Court of Appeal’s view, be just as easily attributed to an embarrassment that she had encouraged or persuaded her mother to make a new will.
The Court of Appeal also felt that the trial judge had also failed to take sufficient account of the evidence of the solicitor, the GP and the carer, all of whom spent a fair amount of time with Mrs Rea, none of whom suspected foul play.
Looking objectively at the facts, so far as they emerge from the judgments, it is hard to see why the trial judge was so convinced that coercion must have been used, on the balance of probabilities. It is certainly not an “inexorable” conclusion from the eight factors, as a matter of logic. The trial judge, with the benefit of observing the witnesses giving live evidence, must just have ‘smelt’ something about Rita, which he could not quite articulate in his written judgment.
This is a problem with proving undue influence: as Mann J observed in Schrader, “it is of the nature of undue influence that it goes on when no-one is looking”.[6] He said that “the proof has to come, if at all, from more circumstantial evidence”. But if ‘pressing persuasion’ is legitimate, how can one ever prove, by circumstantial evidence alone, that the hazy line between persuasion and coercion has been overstepped?
That difficulty is particularly acute, if, as seemed to be accepted, the accusation of undue influence is routinely to be treated as a serious one. Newey LJ cited the usual cases about how the civil standard of proof works in respect of serious allegations, and held: “it seems to me that it will commonly be appropriate to proceed on the basis that undue influence is inherently improbable. As I have said, “undue influence” signifies coercion in this context, and potential beneficiaries are surely less likely to resort to coercion than to rely on affection, gratitude or even persuasion.” So there is a high standard of proof to meet, but in circumstances where direct evidence is usually in short supply.
Secondly, it is often suggested that an allegation of coercion is tantamount to one of fraud. If so, that creates another obstacle: it is professional misconduct to allege fraud in the absence of prima facie evidence, so the claimant’s representative may be professionally inhibited from pleading undue influence on the basis of only circumstantial evidence.
Thirdly, by alleging undue influence, a party takes on a significant costs risk; there is little prospect of costs being ordered out of the estate in a such a case.
The Covid-19 pandemic and consequent lockdowns increased the dependency, isolation, and vulnerability of millions of elderly people, as well as the opportunities for family members and carers to procure the execution of decidedly doubtful wills. Yet the readiness with which the Court of Appeal reversed the trial judge’s findings of fact in the case of Rea appears to reduce a beneficiary’s ability to bring a meaningful challenge to such wills.
The second part of this article, next week, we will explore how undue influence sits within the range of possible challenges to a will’s validity, and whether a reform to the law of undue influence could be a way to redress the balance.