Part 2: Influencing the future: What next for Undue Influence in Probate?

Alexander Learmonth KC

The first part of this article analysed the recent case of Rea v Rea,[1] noting the difficulties faced by someone wishing to plead and prove an allegation of undue influence on the basis of circumstantial evidence, since ‘persuasion’ will usually be a legitimate way of procuring the same result.
This can leave those wanting to challenge those wills which seem to them unfair or unlikely in a quandary. Each of the other potential grounds of invalidity has been chiselled away at, in a succession of cases, in service of the important public policy, that those in the final stages of their lives ought not to be unreasonably prevented from making a valid will.
1. As to formal validity, we know that there is a strong presumption that wills have been duly executed, if they appear so on their face.[2]
2. As for testamentary capacity, the case law has made clear that the threshold set by the 150-year-old Banks v Goodfellow test is not a high one. Simon v Byford [3] serves as authority for the propositions that capacity depends on the capacity to understand not on actual understanding; that capacity is not to be equated with a test of memory; that a testator need not understand the collateral, indirect consequences of the decision, only the direct consequences; and that the law does not require one to remember the reasons one made one’s previous will as one did.[4]
3. Cases on knowledge and approval show that that just means one knows what is in the will, and understands in broad terms what it does. As Gill v Woodall[5] shows, if it can be shown that the will accords with the instructions given by the testator, or that the will has been read or better still explained by a professional, that is strong evidence or even a presumption of knowledge and approval, even if there has been beneficiary involvement along the way.
4. There is seemingly no doctrine of mistake in relation to wills: being mistaken about a key fact relevant to one’s testamentary disposition does not invalidate a will. For example, a testator might mistakenly believe that she has already given a house to one child and so leave what she has left equally to the other, or forget that her son has been to visit her every week and leave her estate to her daughter as a punishment to him, but those things will not invalidate the will, unless of course those beliefs were the result of a delusion other disorder of the mind, or of lies told by the beneficiary.
5. But fraudulent calumny – often described as a species of undue influence but conceptually distinct – is particularly hard to prove. A would-be beneficiary can tell falsehoods against her rival beneficiaries, but the will is only invalidated if she does it dishonestly. As HHJ Hodge KC said in Rea itself: “If a person believes that they are telling the truth about a potential beneficiary, then, even if what they tell the testator is objectively untrue, the will is not liable to be set aside on that ground alone. In the present case, I am left in no doubt that Rita genuinely believed that after 7 and 14 November 2015, her brothers, David and Nino respectively, had ‘abandoned’ the care of their mother, something Remo had done many years before. This is not, in my judgment, a case of fraudulent calumny.”
As readers may remember, the Law Commission’s on reform of the law of wills began with a substantial consultation in 2017, but was then paused for other work. It was restarted last year with a supplementary consultation paper on electronic wills, and the automatic revocation of wills by marriage. But the Commission made clear that its reconsultation on those issues did not mean that there would be no recommendations for reform on all the other many issues featured in the original consultation paper, including formalities, capacity, mutual wills, deathbed gifts and – crucially – undue influence.
As the Law Commission said in their 2017 Consultation Paper, there are two objectives to be balanced. On the one hand, the law must provide adequate protection to testators by ensuring that wills which do not reflect their freely made wishes can be challenged. On the other, the law must not encourage speculative claims by disappointed beneficiaries. The Law Commission’s proposal in 2017 was to introduce a modified version of the equitable doctrine of undue influence applicable to lifetime transactions, as set out in RBS v Etridge, but tailored to the testamentary context.
First, under the proposal, one would have to show a ‘relationship of influence’ of the beneficiary over the testator (and in some cases that relationship would be irrebuttably presumed, such as gifts to solicitors or doctors).
Then, in place of the Etridge requirement that the transaction ‘calls for explanation’, one would have to show either that there was some conduct of the beneficiary in relation to the making of the will, or that the will was made in certain circumstances, such that the disposition in the will calls for an explanation. In other words, the court would not just be asking whether the disposition could be accounted for by the ordinary motives of persons in that relationship, or considering ‘manifest disadvantage’ – that would not be terribly useful in the testamentary context. Merely asking a parent whether they have made a will, or helping them to make the appointment with the solicitor, would not amount to such conduct, nor would the fact that the will was made during end of life care necessarily amount to suspicious circumstances.
If those two ingredients – a relationship of influence, plus a testamentary disposition calling for an explanation, are established – then the onus shifts to the person propounding the will to rebut the presumption of undue influence. As with Etridge presumed undue influence, merely taking legal advice may not be enough: the solicitor may have had to elicit a rational, and perhaps factually accurate, explanation for the change before the presumption might be rebutted.
The proposal in the 2017 paper was relatively loosely drawn. Exactly what amounts to a sufficient ‘relationship of influence’ in this context is not made clear: does it mean something closer to ascendancy, or is trust and confidence enough? Nor is it clear what sort of conduct by a beneficiary or what sort of circumstances attending the making of the will would mean that the disposition ‘calls for an explanation’, nor what would have to be shown to rebut the presumption. These things are discussed, but not in any conclusive manner. When critiquing the proposal in the form in which it was published for consultation, we must recognise when any final proposal for reform is published, it will be more fully elaborated.
Nonetheless, it seems to the writer that there are likely to be some real drawbacks with this so-called ‘structured approach’.
First, there will be a limit to how far the legislation is able to remedy the lack of clarity in the elements of the test. It will certainly require a great deal of judicial working out, over a number of cases and appeals, creating a prolonged period of uncertainty – good for contentious lawyers, but not so good for non-contentious lawyers or, more importantly, for the public.
Secondly, much would inevitably turn, it seems, on what the changes being made to the contents of the will were, and would therefore involve a subjective consideration by the court of whether they were fair, justified and reasonable. In practice, of course, the court often takes those things into account as the law stands, not only in cases of undue influence but other grounds: look at Sharp v Adam,[6] for example. But as a general proposition, the courts try not to be overly influenced by its subjective view of the testator’s choices, for a number of reasons. Freedom of testamentary disposition – including the ability of a capricious or spiteful testator to make a capricious or spiteful will – is respected. As stated in Fuller v Strum,[7] the question is never whether the court ‘approves’ of the will’s contents. And as Lord Neuberger wisely observed in Gill v Woodall,[8] “Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix”. “Few declarations”, said the sceptical Lord Eldon in Pemberton v Pemberton, “deserve less credit than those of men as to what they have done by their wills”.[9]
Thirdly, there is a strong judicial trend against overreliance on evidential presumptions, in probate cases and in the law generally. Ultimately, after a contested trial, the court decides the matter according to the evidence on the balance of probabilities. Cases are rarely decided on the basis of where the burden of proof lies. That can be seen in Lord Neuberger’s one-stage test for knowledge and approval in Gill v Woodall, as well as in dicta of the Court of Appeal in Burns v Burns in relation to testamentary capacity.[10] We also see it in cases on lifetime undue influence, and in an influential article by Sir Kim Lewison from 2011.[11] To introduce a new statutory evidential presumption would be trying swim against the tide, and would raise the question of whether a statutory presumption is to be accorded some different status to an evidential presumption in the common law.
Fourthly, and related to that, to apply a rebuttable presumption, one still needs to know exactly what question the evidential presumption is intended to help the court determine – what actually is “undue influence”? Would it still mean only ‘coercion’, or would it now include the other forms of unfair conduct which the equitable doctrine catches in relation to lifetime transactions, such as the common ‘don’t worry, just sign here darling’ scenario, hitherto thought to be caught by the requirement of knowledge and approval? The difference between the two doctrines of undue influence is not merely evidential, but substantive, so this is a fundamental question, though it does not seem to find an answer in the 2017 consultation paper. Would it still possible to prove undue influence without reliance on the statutory presumption? The consultation paper does not say, but any legislation would need to be clear on this.
In any event, of course, any legislative reform would unfortunately not have retrospective effect to help those many testators who made their last wills during Covid-19 lockdowns
It may be that one potential answer already lies within the common law test, when it is properly understood and applied.
Lewison J famously summarised the test for undue influence in probate cases in Re Edwards.[12] Having made the point about persuasion being legitimate, he then went on to point out that where the line is to be drawn depends on the mental and physical strength of the testator. He said this:

“The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will.”

HHJ Hodge KC at trial, like almost every judge in almost every undue influence case of the last 15 years, quoted this passage in his judgment. The Court of Appeal, surprisingly, did not even mention Re Edwards, but it did at least quote from some of its source material, such as Wingrove v Wingrove,[13] where it was pointed out that “a person in the last days or hours of life may have 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“.
So in that situation, it seems “pressing persuasion” is not allowed after all. But, despite the quotation from Wingrove, it is not apparent from the Court of Appeal’s judgment that they had taken that on board.
Properly understood, in these cases of the elderly, the frail, the mentally enfeebled, the dependent and the vulnerable, very little – just harping on about something constantly – could be enough to make that person do what they don’t really want to do. Testators may succumb to what was intended merely as persuasion, not because they were actually persuaded, but because they were so worn down by it over days or weeks. In these cases, there is little if any distinction between “mere” persuasion and coercion.
And is always necessary that the testator be frail? The relationship between parent and child is a curious one. How often do parents give into their young children’s repeated requests for ice cream, screen time, or the like, not because they convinced that ice cream is deserved, but because they would just like to be allowed to get on with what they were doing? If truth be told, they have been coerced by a pre-schooler.
If that is understood, then it follows that alleging undue influence in such a case need not be seen as such a ‘serious’ allegation. It would be appreciated that beneficiaries – particularly those with overbearing and self-entitled personalities – might well commit undue influence without even realising that that was what they were doing, e. without knowing that the effect of their persuasion was not to persuade but to overbear. The evidential burden required to prove such an allegation then need not be thought so high. The dire costs consequences attending the making of an allegation of undue influence need not always follow. Counsel could routinely plead it in good conscience.
From the judgments of the trial judge and the Court of Appeal, it is not possible to say that Rea was in fact such a case – Anna may have been frail, somewhat cognitively impaired and dependent on Rita, but there was evidence that she still had a strong spirit. But it may be that Rita’s lies about what she had and hadn’t said to her mother would be sufficient to justify the trial judge’s adverse inference about whether she had crossed that line between true persuasion and the ‘drip-drip’ coercion.