In the last 12 months we have seen two significant decisions in the context of will validity challenges on the basis of undue influence. Laura Abbott (Principal Associate) and Hannah Donnelly (Paralegal) at Rothley Law examine the cases and implications.
What is undue influence?
In the context of will making, undue influence means coercion, where someone is pressured into making a will in terms they would not otherwise, but for that pressure.
Recently there has been two significant decisions in the context of will validity challenges on the basis of undue influence. Here we will look at the cases, the decisions and their implications:
Jones & Ors v Jones [2023] EWHC 1457 (Ch)
Background
Daphne Jones died in September 2021. She was survived by three of four children (her daughter Vicky died in February 2021) and eight grandchildren. She had made a will in July 2021 in favour of only one of her children, Ceri. She did not have any previous wills. The deceased had been diagnosed with early mixed dementia in 2020 but had lived independently at home until 2021, when Ceri went to stay with her.
The claimants were the deceased’s surviving daughters, Catherine and Jacqueline, and the children of Vicky. They challenged the will on the basis of a lack of testamentary capacity, lack of knowledge and approval and undue influence.
Usually, undue influence would be the most difficult claim to run as there is little or no evidence of it, with the undue influence invariably happening behind closed doors, and a high burden of proof being required (beyond reasonable doubt).
Decision
In Jones & Ors v Jones, whilst the deceased had a dementia diagnosis the judge was satisfied that there was no evidence that the deceased lacked testamentary capacity. The judge also rejected the knowledge and approval claim, finding that the will, whilst homemade, was straightforward to follow and understand.
However, the judge found that the facts in this case pointed “inevitably” to the conclusion that Ceri did indeed coerce the deceased into making her will.
The judge listed ten reasons for reaching the decision:
- There was evidence that Ceri believed she should inherit her mother's house, including text messages sent by her to other family members.
- The deceased had always expressed her testamentary wishes to be equality between her children.
- The judge was conscious the deceased would have been grieving the death of Vicky when she signed the will.
- The judge heard evidence from various witnesses to the effect that the ability to make contact with the deceased became progressively harder after Ceri moved in with her, supporting a “vivid picture of the deceased becoming increasingly isolated from them”.
- Ceri reacted angrily when the deceased’s brother tried to discuss the will with the deceased during her lifetime.
- Ceri told the deceased deliberate untruths about the other family members.
- The deceased was physically and mentally vulnerable and very dependent on Ceri when she signed the will.
- Ceri denied being involved in the preparation of the will but there was evidence that she was.
- The will was signed without any legal or medical professionals being involved.
- Even after the will was signed, Ceri further distanced her mother from her family, friends, social workers and the police.
Conclusion
In view of all of the above, the judge concluded “…Notwithstanding the high burden [of undue influence], I am satisfied that Mrs Jones signed her will not as a free agent, but because her volition had been overcome, without convincing her judgment, by the undue influence of Ceri Jones”.
The will was held to be invalid, and the deceased’s estate passed on intestacy.
Rea v Rea [2024] EWCA Civ 169
Background
The long running case of Rea v Rea reached its conclusion in the Court of Appeal in February 2024. The background to this case is that Anna Rea died in 2016 leaving a will made in 2015 in which she left her property, the main asset in her estate, to her daughter Rita. The will was challenged by Anna’s other children, on the basis of lack of testamentary capacity, lack of knowledge and approval and undue influence.
The Court of Appeal hearing was the fifth round of litigation in this estate. The High Court had found that the will was invalid due to undue influence.
Decision
The High Court decision was overturned by the Court of Appeal. The court held that there was insufficient evidence of undue influence, noting that although the daughter had a “forceful personality” and “forceful physical presence”, there was “no direct evidence of coercion” exerted by the daughter over the deceased.
The court gave weight to the fact that two experienced professionals saw the deceased and were content there was no coercion. They also found evidence that the deceased had consistently expressed this to be her testamentary wishes and commented that ‘there was a perfectly rational basis’ for giving the claimant the property, as she had lived there and looked after the deceased for six years, whereas the deceased considered that her other children ‘did not care for her [and] had abandoned her’.
Conclusion
The case outlined the law in respect of undue influence as follows:
“I would accept that undue influence can be proved without demonstrating that the circumstances are necessarily inconsistent with any alternative hypothesis. On the other hand, the circumstances must be such that undue influence is more probable than any other hypothesis. If another possibility is just as likely, undue influence will not have been established. When making that assessment, moreover, it may well be appropriate to proceed on the basis that undue influence is inherently improbable.
[…]
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.”
In this case the evidence was that undue influence was not more probable than the other hypothesis, the other hypothesis being that Anna simply wanted to benefit Rita more. The court therefore found the will to be valid and ordered it to be admitted to probate.
Summary
For practitioners, these cases are of huge interest because undue influences cases which actually reach court are rare. The decisions are useful to show what evidence is needed to succeed and where cases are likely to fail.
Practitioners are reporting seeing a surge in enquiries of this nature. This is attributed to two main factors; our increasingly ageing population (with an associated increase in the number of dementia sufferers, so more vulnerable will makers) and a post-COVID trend.
The lockdown restrictions during COVID, particularly for vulnerable people, gave unscrupulous family members the perfect opportunity to legitimately isolate their victims from family members, friends, support networks and even medical or legal professionals. As those people die over the coming years, the door is now arguably wide open to challenge wills made during this time post Jones v Jones.
Rea v Rea has also arguably restated the law and reduced the evidential burden from requiring undue influence to be inconsistent with any other hypothesis (as previously) to requiring undue influence to be more probable than any other hypothesis.
About the author
Laura Abbott is a Principal Associate at Rothley Law and is a member of the Society of Trust and Estate Practitioners (STEP).
Hannah Donnelly is a Paralegal based in the Disputed Wills and Trusts at Rothley Law. Her experience includes working on cases involving challenges to the validity of a Will; claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975; rectification claims; removal of executors; and trust disputes.
See also
Place a deceased estates notice
Contesting a will on the grounds of undue influence, fraud, or forgery
Wills and testamentary capacity – case law updates 2024
James v Scudamore [2023] - using laches for will validity claims
Find out more
Jones & Ors v Jones [2023] EWHC 1457 (Ch) (BAILII)
Rea v Rea [2024] EWCA Civ 169 (BAILII)
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Publication date
1 May 2024
Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.