1. Introduction
Cases in which it is alleged that a will should be denied probate because the testator’s will was overborne by undue influence are reported quite regularly. Although the test to establish undue influence is well known, it is ultimately the facts that determine the issue. But even then, judges can take a different view of the evidence and come to opposite conclusions. That is what happened in a recent English case, Rea v Rea,[1] in which the Court of Appeal for England and Wales reversed the decision the trial judge, who had concluded that the will could not be probated because of undue influence. The Court of Appeal discusses the case law that lays down the test for undue influence in detail and the case is worth reading if only for that timely review. Then it applies the test to the facts.
2. Facts
The testator, Anna Rea, died in 2016, aged 85. She was divorced and survived by her four children, her daughter Rita, and her three sons Remo, Nino, and David. Anna had made her first will in 1986 (the ‘1986 Will’) after she was divorced, in which she left her estate equally to all her children. She made a new will in 2015 (the ‘2015 Will’). In it she named Rita her executor, devised her house to Rita, and left the residue equally to all her children, with substitutionary gifts to issue.
In the last two decades of her life, Anna began to suffer from various health conditions, including hearing difficulties, diabetes, as serious heart attack in 2009, chronic kidney disease, cataracts, and sciatica. She was also wheelchair bound. After the heart attack, Rita came to live with her mother and became her main care giver until Anna’s death. Anna’s friend, Paula Batson, also lived with her during this period.
Late in 2015 Anna decided to make a new will. Rita made the appointment with the solicitor, Mrs Sukul, but she had no previous involvement with the law firm. At Anna’s request, Rita attended the meeting. Mrs Sukul, who had a lot of experience in taking instruction for and drafting of wills, took copious contemporaneous notes. She stated that Rita intervened from time to time, but that she took her instructions only from Anna. Anna told Mrs Sukul that she wanted to ensure that her house would go to Rita. When Mrs Sukul asked her if she wanted her sons to receive a share in the house, she explained that she did not because they did not care for her and that she felt abandoned by them. Mrs Sukul wrote a letter to Dr Qaiyum, Anna’s physician since 2010, to do an assessment of Anna’s mental capacity for the purpose of making a will. After speaking to Anna about her children, the gifts she proposed to leave them, and her response that she wanted Rita to have her house, he concluded that Anna had testamentary capacity and that he did not believe that she was being coerced or was being subjected to undue influence. Mrs Sukul saw Anna again a couple of weeks later without Rita. She explained the will in detail and concluded that Anna understood its contents and that they reflected her intentions. Mrs Sukul again made detailed attendance notes. She and Dr Qaiyum attested Anna’s signature.
The Will named Rita and a niece her executors, but the niece renounced. The Will contained a declaration in which Anna stated that her sons did not help with her care, although she asked for help on numerous occasions, whereas Rita was her sole caregiver for many years.
In 2017 Rita sought probate of the 2015 Will in solemn form. Anna had not told her sons about the new will and neither had Rita until after Anna died. The brothers opposed the application on the grounds that Anna lacked testamentary capacity, that she did not know and approve the contents of the 2015 Will, and that Rita exercised undue influence over her mother. They also argued that the Will was invalid because of ‘fraudulent calumny’.[2] The brothers sought orders pronouncing against the 2015 Will and granting probate of the 1986 Will.
3. The Trial
At an original trial in 2019 the court ordered that the will should be admitted to probate. An appeal from that judgment was dismissed, but a further appeal to the Court of Appeal was granted because the Deputy Master had made a mistake in restricting cross-examination of Rita, which caused serious prejudice. The court ordered that the matter be remitted for a retrial, which took place in 2023.[3] His Honour Judge Hodge KC (sitting as a judge of the High Court) held that Rita had demonstrated that her mother had testamentary capacity when she gave her instructions for the 2015 Will and when she executed it. His Honour was also satisfied that Anna was not suffering from a disorder of the mind that had poisoned her affections, perverted her sense of right, or prevented the proper exercise of her natural faculties. He accepted as well that Rita had proved that Anna knew and approved the Will and that the case did not involve fraudulent calumny. However, he took the view that, despite the involvement of Mrs Sukul and Dr Qaiyum, the brothers had made out the case of undue influence. In his view, ‘the facts are consistent only with Rita having procured the making and execution of the 2015 Will by the exercise of undue influence, which overpowered Anna’s volition without convincing her judgment’.[4] He based his conclusion on the following factors (which I have briefly summarized):
- Anna’s frailty and vulnerability as contrasted with Rita’s argumentative and forceful personality, and her forceful physical presence.
- Apart from assistance rendered by Mrs Batson, Anna was entirely dependent on Rita.
- Rita’s evidence about how Anna told her that she wished to change her 1986 Will.
- The timing of the making of the 2015 Will, namely, just days after David and then Nimo stopped assisting Rita in caring for their mother.
- The fact that Rita made the arrangements for Anna to make the new Will and Anna’s insistence that Rita be present when she gave her instructions.
- The terms of the 2015 Will, which effected a major change in Anna’s previous Will and substantially disinherited her sons while leaving her major asset to Rita.
- His Honour had major concerns about the motivations Anna gave for leaving her house to Rita, when tRita still owned a flat elsewhere.
- The failure of Anna and Rita to disclose the existence of the new Will to anyone, not even Ms Batson, before Anna’s death.
His Honour concluded that these factors in combination inexorably led to the conclusion that Rita had coerced Anna into making the new Will, in the sense that Rita had overborne Anna’s will. However, he did not regard the case as one of fraudulent calumny.
Although His Honour found Dr Qaiyum and Mrs Batson to be reliable and truthful witnesses, he did not accept some of Rita’s evidence, but found her to be an ‘unsatisfactory and unreliable witness’, who had ‘a clear tendency to exaggerate’. He did, however, find that both David and Nino had in effect left Rita to care for their mother on her own. Accordingly, he pronounced against the Will.
Rita appealed.
4. The Appeal
Lord Justice Newey wrote the judgment on the appeal; Lords Justices Moylan and Arnold concurred.
Lord Justice Newey first summarized the legal principles governing unjust enrichment. In the course of his summary, he referred to a number of well-known authorities, including, Parfitt v Lawless,[5] Hall v Hall,[6] Wingrove v Wingrove,[7] and Craig v Lamoureux.[8] These cases recognize that it is perfectly legitimate to press your claims on the testator, so long as you do not coerce her and that you do not overbear her will. Further, they lay down the principle that it is not sufficient to show that a person has the power to overbear the testator’s will, the defendant must also prove that in the case before the court the person exercised the power and that in consequence the testator has been subjected to undue influence. Indeed, in Boyse v Rossborough[9] Lord Cranworth stated:
… in order to set aside the will of a person of sound mind, 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.
Lord Justice Newey went on, however, to discuss cases that discuss the burden of proof in these cases. It is the civil standard, but as Lord Hoffmann said in Home Secretary v Rehman:[10]
The civil standard of proof always means more likely than not. The only higher degree of probability required by law is the criminal standard. But … some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.
Thus, Lord Justice Newey stated in paragraph 27:
The extent, if any, to which it is appropriate to have regard to inherent probabilities will thus be affected by the particular facts. Even so, it seems to me that it will commonly be appropriate to proceed on the basis that undue influence is inherently improbable.
In paragraph 32 his Lordship agreed with a statement in Theobald on Wills[11] that ‘the true test of undue influence is the most likely hypothesis, having regard to the inherent unlikelihood of someone practicing undue influence on a testator’.
Lord Justice Newey considered each all of the reasons given by the trial judge that are set out above and took issue with each of them. In particular, he noted in paragraph 55, ‘it is not apparent that that he [the trial judge] took sufficient account of the evidence of Mrs. Sukul, Dr Qaiyum, and Ms. Batson, all of whom he regarded as reliable witnesses and who gave evidence in support of the Will.
His Lordship found that although Rita may be argumentative and have a forceful personality, and had has a reason to want the house for herself, the facts were clear that: (a) Anna had testamentary capacity; (b) she knew and approved the terms of the Will; (c) there was no direct evidence of coercion; (d) Ms. Batson testified that Rita had never abused Anna; (e) Mrs. Sukul and Dr Qaiyum, both experienced professionals, did not find evidence of coercion, and confirmed that Anna consistently stated that she wanted Rita to have the house; (f) Ms. Batson testified that Anna was strong-willed and not a push-over; (g) Mrs. Sukul testified that Anna was able to reject suggestions from Rita and of revising her instructions when Rita was absent; and (h) there was a perfectly rational reason to give Rita the house, since she had lived in it for six years while looking after Anna, and Anna was of opinion (confirmed by Mrs. Sukul and Dr Qaiyum) that Rita needed the house as a home, that her sons did not care for her and had abandoned her, and that her sons had their own homes and jobs.
Consequently, his Lordship held that in the circumstances the trial judge was mistaken in finding undue influence, for the evidence did not allow him to reach that conclusion. It was not a case of coercion that would ‘overpower the volition without convincing the judgment. He concluded that this ‘is a case in which it is appropriate to proceed on the basis that such conduct is inherently unlikely. Further, since there was no direct evidence of coercion and could not reasonably be found in his view, the circumstances mentioned justified such an inference. For coercion to be proved by the defendants, they must show that it is more probable than any other possibility. I his view there was no question of coercion being the most probable possibility in this case.
—
[1] 2024 EWCA Civ 169.
[2] This is a term used in England for what I described in an earlier blog as: ‘the flagitious acts of a person who persuades a testator by using slander and other false statements that she should disinherit an heir (and make him an heir in a new will)’. See https://welpartners.com/blog/2023/02/fraudulent-calumny/. However, there can be no fraudulent calumny if the person believes his aspersions to be true, even if they are objectively untrue.
[3] [2023] EWHC 1901 (Ch).
[4] Ibid., para 124.
[5] (1869-72) LR 2 P&D 462, 469-471.
[6] (1865-69), 1 P&D 481.
[7] (1885) 11 PD 81 at 82083.
[8] [1919] AC 349, at 357.
[9] (1857) 6 HL Cas 2 at 51.
[10] [2001] UKHL 47, [2003] 1 AC 153, at para 55.
[11] 19th ed, para 4-060.
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Written by: Albert Oosterhoff
Posted on: June 26, 2024
Categories: Commentary, WEL Newsletter
1. Introduction
Cases in which it is alleged that a will should be denied probate because the testator’s will was overborne by undue influence are reported quite regularly. Although the test to establish undue influence is well known, it is ultimately the facts that determine the issue. But even then, judges can take a different view of the evidence and come to opposite conclusions. That is what happened in a recent English case, Rea v Rea,[1] in which the Court of Appeal for England and Wales reversed the decision the trial judge, who had concluded that the will could not be probated because of undue influence. The Court of Appeal discusses the case law that lays down the test for undue influence in detail and the case is worth reading if only for that timely review. Then it applies the test to the facts.
2. Facts
The testator, Anna Rea, died in 2016, aged 85. She was divorced and survived by her four children, her daughter Rita, and her three sons Remo, Nino, and David. Anna had made her first will in 1986 (the ‘1986 Will’) after she was divorced, in which she left her estate equally to all her children. She made a new will in 2015 (the ‘2015 Will’). In it she named Rita her executor, devised her house to Rita, and left the residue equally to all her children, with substitutionary gifts to issue.
In the last two decades of her life, Anna began to suffer from various health conditions, including hearing difficulties, diabetes, as serious heart attack in 2009, chronic kidney disease, cataracts, and sciatica. She was also wheelchair bound. After the heart attack, Rita came to live with her mother and became her main care giver until Anna’s death. Anna’s friend, Paula Batson, also lived with her during this period.
Late in 2015 Anna decided to make a new will. Rita made the appointment with the solicitor, Mrs Sukul, but she had no previous involvement with the law firm. At Anna’s request, Rita attended the meeting. Mrs Sukul, who had a lot of experience in taking instruction for and drafting of wills, took copious contemporaneous notes. She stated that Rita intervened from time to time, but that she took her instructions only from Anna. Anna told Mrs Sukul that she wanted to ensure that her house would go to Rita. When Mrs Sukul asked her if she wanted her sons to receive a share in the house, she explained that she did not because they did not care for her and that she felt abandoned by them. Mrs Sukul wrote a letter to Dr Qaiyum, Anna’s physician since 2010, to do an assessment of Anna’s mental capacity for the purpose of making a will. After speaking to Anna about her children, the gifts she proposed to leave them, and her response that she wanted Rita to have her house, he concluded that Anna had testamentary capacity and that he did not believe that she was being coerced or was being subjected to undue influence. Mrs Sukul saw Anna again a couple of weeks later without Rita. She explained the will in detail and concluded that Anna understood its contents and that they reflected her intentions. Mrs Sukul again made detailed attendance notes. She and Dr Qaiyum attested Anna’s signature.
The Will named Rita and a niece her executors, but the niece renounced. The Will contained a declaration in which Anna stated that her sons did not help with her care, although she asked for help on numerous occasions, whereas Rita was her sole caregiver for many years.
In 2017 Rita sought probate of the 2015 Will in solemn form. Anna had not told her sons about the new will and neither had Rita until after Anna died. The brothers opposed the application on the grounds that Anna lacked testamentary capacity, that she did not know and approve the contents of the 2015 Will, and that Rita exercised undue influence over her mother. They also argued that the Will was invalid because of ‘fraudulent calumny’.[2] The brothers sought orders pronouncing against the 2015 Will and granting probate of the 1986 Will.
3. The Trial
At an original trial in 2019 the court ordered that the will should be admitted to probate. An appeal from that judgment was dismissed, but a further appeal to the Court of Appeal was granted because the Deputy Master had made a mistake in restricting cross-examination of Rita, which caused serious prejudice. The court ordered that the matter be remitted for a retrial, which took place in 2023.[3] His Honour Judge Hodge KC (sitting as a judge of the High Court) held that Rita had demonstrated that her mother had testamentary capacity when she gave her instructions for the 2015 Will and when she executed it. His Honour was also satisfied that Anna was not suffering from a disorder of the mind that had poisoned her affections, perverted her sense of right, or prevented the proper exercise of her natural faculties. He accepted as well that Rita had proved that Anna knew and approved the Will and that the case did not involve fraudulent calumny. However, he took the view that, despite the involvement of Mrs Sukul and Dr Qaiyum, the brothers had made out the case of undue influence. In his view, ‘the facts are consistent only with Rita having procured the making and execution of the 2015 Will by the exercise of undue influence, which overpowered Anna’s volition without convincing her judgment’.[4] He based his conclusion on the following factors (which I have briefly summarized):
His Honour concluded that these factors in combination inexorably led to the conclusion that Rita had coerced Anna into making the new Will, in the sense that Rita had overborne Anna’s will. However, he did not regard the case as one of fraudulent calumny.
Although His Honour found Dr Qaiyum and Mrs Batson to be reliable and truthful witnesses, he did not accept some of Rita’s evidence, but found her to be an ‘unsatisfactory and unreliable witness’, who had ‘a clear tendency to exaggerate’. He did, however, find that both David and Nino had in effect left Rita to care for their mother on her own. Accordingly, he pronounced against the Will.
Rita appealed.
4. The Appeal
Lord Justice Newey wrote the judgment on the appeal; Lords Justices Moylan and Arnold concurred.
Lord Justice Newey first summarized the legal principles governing unjust enrichment. In the course of his summary, he referred to a number of well-known authorities, including, Parfitt v Lawless,[5] Hall v Hall,[6] Wingrove v Wingrove,[7] and Craig v Lamoureux.[8] These cases recognize that it is perfectly legitimate to press your claims on the testator, so long as you do not coerce her and that you do not overbear her will. Further, they lay down the principle that it is not sufficient to show that a person has the power to overbear the testator’s will, the defendant must also prove that in the case before the court the person exercised the power and that in consequence the testator has been subjected to undue influence. Indeed, in Boyse v Rossborough[9] Lord Cranworth stated:
… in order to set aside the will of a person of sound mind, 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.
Lord Justice Newey went on, however, to discuss cases that discuss the burden of proof in these cases. It is the civil standard, but as Lord Hoffmann said in Home Secretary v Rehman:[10]
The civil standard of proof always means more likely than not. The only higher degree of probability required by law is the criminal standard. But … some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.
Thus, Lord Justice Newey stated in paragraph 27:
The extent, if any, to which it is appropriate to have regard to inherent probabilities will thus be affected by the particular facts. Even so, it seems to me that it will commonly be appropriate to proceed on the basis that undue influence is inherently improbable.
In paragraph 32 his Lordship agreed with a statement in Theobald on Wills[11] that ‘the true test of undue influence is the most likely hypothesis, having regard to the inherent unlikelihood of someone practicing undue influence on a testator’.
Lord Justice Newey considered each all of the reasons given by the trial judge that are set out above and took issue with each of them. In particular, he noted in paragraph 55, ‘it is not apparent that that he [the trial judge] took sufficient account of the evidence of Mrs. Sukul, Dr Qaiyum, and Ms. Batson, all of whom he regarded as reliable witnesses and who gave evidence in support of the Will.
His Lordship found that although Rita may be argumentative and have a forceful personality, and had has a reason to want the house for herself, the facts were clear that: (a) Anna had testamentary capacity; (b) she knew and approved the terms of the Will; (c) there was no direct evidence of coercion; (d) Ms. Batson testified that Rita had never abused Anna; (e) Mrs. Sukul and Dr Qaiyum, both experienced professionals, did not find evidence of coercion, and confirmed that Anna consistently stated that she wanted Rita to have the house; (f) Ms. Batson testified that Anna was strong-willed and not a push-over; (g) Mrs. Sukul testified that Anna was able to reject suggestions from Rita and of revising her instructions when Rita was absent; and (h) there was a perfectly rational reason to give Rita the house, since she had lived in it for six years while looking after Anna, and Anna was of opinion (confirmed by Mrs. Sukul and Dr Qaiyum) that Rita needed the house as a home, that her sons did not care for her and had abandoned her, and that her sons had their own homes and jobs.
Consequently, his Lordship held that in the circumstances the trial judge was mistaken in finding undue influence, for the evidence did not allow him to reach that conclusion. It was not a case of coercion that would ‘overpower the volition without convincing the judgment. He concluded that this ‘is a case in which it is appropriate to proceed on the basis that such conduct is inherently unlikely. Further, since there was no direct evidence of coercion and could not reasonably be found in his view, the circumstances mentioned justified such an inference. For coercion to be proved by the defendants, they must show that it is more probable than any other possibility. I his view there was no question of coercion being the most probable possibility in this case.
—
[1] 2024 EWCA Civ 169.
[2] This is a term used in England for what I described in an earlier blog as: ‘the flagitious acts of a person who persuades a testator by using slander and other false statements that she should disinherit an heir (and make him an heir in a new will)’. See https://welpartners.com/blog/2023/02/fraudulent-calumny/. However, there can be no fraudulent calumny if the person believes his aspersions to be true, even if they are objectively untrue.
[3] [2023] EWHC 1901 (Ch).
[4] Ibid., para 124.
[5] (1869-72) LR 2 P&D 462, 469-471.
[6] (1865-69), 1 P&D 481.
[7] (1885) 11 PD 81 at 82083.
[8] [1919] AC 349, at 357.
[9] (1857) 6 HL Cas 2 at 51.
[10] [2001] UKHL 47, [2003] 1 AC 153, at para 55.
[11] 19th ed, para 4-060.
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