A high bar for establishing undue influence in relation to wills
Despite having certain common features that were considered indicative of undue influence, the judges in each of Copley v Winter EWHC 1712 Ch 2023 and Rea v Rea EWHC 1901 Ch 2023 reached different conclusions as to whether undue influence was at play. However, both judgments emphasise that the requisite burden of proof for establishing undue influence is high, with evidence needing to be drawn from the wider circumstances of the case.
Undue influence
Under English law, a testator theoretically has complete freedom to leave their assets in any manner they wish on their death (although this is subject to some statutory limitations). However, one of the grounds on which a will can be challenged is if it can be established that the testator was suffering under undue influence when they made the will, and as a result, they were coerced (or fraudulently misdirected) into making the will.
The burden of proof for establishing undue influence lies with the person asserting it. They must demonstrate undue influence on the balance of probabilities: i.e. was it more likely than not that there was undue influence when the testator made their will? This is notoriously difficult to prove, a fact which is supported by both judgments.
Copley v Winter
The focus of the dispute concerned a plot of land referred to as “Church Lane” on which the deceased kept horses (of which she was very fond). Church Lane had development potential, and therefore significant value.
In the deceased’s original will, made in January 2017, she left Church Lane to the defendant (a friend of the deceased) who lived adjacent to the land.
In January 2019, the deceased executed a new will in which she left Church Lane to the claimant (the granddaughter of the deceased’s long-term partner), with guidance that the claimant should offer Church Lane to the defendant at market value if she ever chose to sell it.
The deceased had terminal cancer at the time of making the 2019 will and was also grieving the recent death of her partner. She died shortly afterwards, in February 2019.
The claimant sought the pronouncement of the validity of the 2019 will. The defendant counterclaimed, challenging the 2019 will on multiple grounds, including undue influence, and asking the court to pronounce against the 2019 will in favour of the 2017 will. The case largely focussed on undue influence.
In his judgment Pearce HHJ listed multiple factors that he considered indicative of undue influence, including the deceased’s vulnerability and deteriorating health, the fact that the claimant had arranged the deceased to meet with her solicitor to change her will and, most notably, his conclusion that the claimant had lied in her evidence and that her lying “tainted” her evidence on other matters. The list of factors supporting the contention that there was no undue influence was shorter.
Notwithstanding this, Pearce HHJ found the will to be valid and there to have been no undue influence. He considered that whilst the circumstances of the case were consistent with undue influence, it was more probable that the deceased changed her will because she “rationally concluded” the claimant would look after her horses if she left her Church Lane.
Rea v Rea
Here, the deceased’s three sons (the defendants) successfully established that their sister (the claimant) had exercised undue influence over their mother (the deceased) in relation to a will she made in December 2015.
The deceased originally made a will in 1986 which provided that her assets should be shared between all four of her children equally.
However, in December 2015, the deceased made a new will under which her house (which represented the main value of her estate) passed to the claimant absolutely because “she has taken care of me all these years”, with all four of her children taking an equal share in the estate's residue (which was insignificant in value). The will went so far as to include a specific provision purporting to express the deceased’s wish that the defendants should not have anything more than their share of residue and that the executors should defend any claim made by them against the deceased’s estate because the defendants had not looked after her.
In finding there to have been undue influence, Hodge HHJ cited the following factors to be persuasive of undue influence: the frailty and vulnerability of the deceased, her dependency on the claimant (who was her carer), the argumentative and forceful personality and physical presence of the claimant, his disbelief of the claimant’s account of her discussions with her mother about changing her will, the fact that the claimant had made the arrangements for the deceased to make a new will and the significant changes made in the terms of the will since the deceased’s original will.
The judge considered that these factors pointed “inexorably” to there being undue influence. However, he noted the possibly “surprising” nature of this conclusion, particularly because the deceased had signed her will in the presence of an experienced solicitor and her GP who had confirmed the deceased’s requisite capacity (whilst the physical and mental strength of a testator are relevant factors in determining how much pressure is necessary to overbear a will, the capacity of the testator is of course a separate issue, and one which represents a distinct ground of potential challenge).
Analysis
Both judgments cite the principles relating to an allegation of undue influence as summarised in Edwards v Edwards [2007] WLTR 1387 and emphasise that it is not enough for the facts to be simply “consistent” with a hypothesis of undue influence – they must be “inconsistent with any other hypothesis”. It was also noted that undue influence goes on “behind closed doors”. As such, there is unlikely to be direct evidence of undue influence; instead, proof “has to come from more circumstantial evidence” from which the court should “draw appropriate inferences”. Due to the seriousness of the allegation, “commensurately strong” evidence is required to successfully demonstrate undue influence. Taken together, this sets a high burden of proof.
Notably, there were common factors considered to be indicative of undue influence in these two cases: both claimants (who were alleged to have exerted undue influence) arranged meetings with the deceased’s solicitors to make changes to their wills, both were disbelieved by the judges on certain points, both acted as carer for the deceased who was considered vulnerable and frail. Notwithstanding these similarities, the circumstantial evidence was deemed sufficient in Rea v Rea to establish undue influence and insufficient in Copley v Winter. From this it can be taken that there are no “slam dunk” features of undue influence. This emphasis on the importance of circumstantial evidence, combined with the high burden of proof required, serves as a reminder of the practical difficulties of proving undue influence.
Additionally, whilst undue influence was successfully established in Rea v Rea, this was a somewhat hollow victory because the major value of the estate (approximately £1m) is likely to be exhausted by the costs of the proceedings. The costs of litigating combined with the practical difficulties involved in proving undue influence need to be considered carefully before pursuing such a claim, particularly where the estate involved is of more limited value.
Concluding remarks
These cases follow Naidoo v Barton [2023] EWHC 500 (Ch), a recent and rare decision relating to the use of mutual wills, where the judge overturned the surviving spouse’s will on the ground of undue influence. Here, the court decided that where undue influence is claimed in cases involving mutual wills, it is appropriate to apply the test for undue influence regarding lifetime transactions (per Royal Bank of Scotland Plc v Etridge (No.2) [2002] 2 AC 773). This test sets a lower bar for undue influence (presuming undue influence where certain factors are met) than the test for undue influence relating to wills, and the decision echoes calls for reform in this area by the Law Commission (who are this month expecting to publish a further consultation paper in their recently revived project on reforming the law on wills, first started in 2016).
With the number of contentious probate cases on the rise, it seems likely that undue influence will be a subject we see visited with increasing frequency by the courts, coupled with a potential re-evaluation of the law in this area.
