Rea v Rea: A Changing Landscape for Undue Influence

In the case of Rea v Rea, the High Court had determined that a Will was invalid on the ground of undue influence, despite a solicitor’s and medical professional’s opinion that the Deceased was not coerced.

That decision, after a retrial, was appealed and on the 23 February 2024 the Court of Appeal handed down judgment in that appeal ([2024] EWCA Civ 169) and overturned the decision, reaching a conclusion that the Deceased did in fact have a valid Will and was not coerced by her daughter.

A strong message was given by the Court of Appeal that to prove undue influence in a probate claim the circumstances had to be such that undue influence was more probable than any other hypothesis.  This is a high bar, which will often not be met, as in this case.

I have set out below the factual background to the case and the legal principles arising from it.

Background

This case concerned the estate of Anna Rea (“the Deceased”) who died in July 2016, and the reason for the dispute was her last Will, dated 7 December 2015 (“the 2015 Will”).

The Deceased had four children, Rita, Remo, Nino and David. In her previous will, (“the 1986 Will”) the Deceased appointed Remo as the executor and left her estate to be split between her living children in equal shares.

In 2009 after the Deceased’s heart attack, Rita (“the Claimant”) went to live with her mother and became her principal carer. The Deceased suffered from a number of health conditions including being deaf in one ear and sciatica, which resulted in the Deceased being wheelchair bound. The Deceased lived at 5 Brenda Road, Tooting Bee, London SWl 7 7DD (“the property”) with the Claimant and the Deceased’s friend, Ms Batson.

During November 2015 the Deceased spoke with SJS Solicitors and provided instructions that she wished to create a new Will. Within this 2015 Will, the Deceased requested that the property be left solely to the Claimant and for the residue of her estate to split equally between her four children. The reason behind this was because the Claimant had moved in to take care of the Deceased, whereas the Deceased’s sons had stopped taking care of the Deceased. The solicitor requested a capacity test to be completed by Dr Qaiyum, who confirmed the Deceased had capacity and there was no sign of her being coerced or under influence.

Claim

Following the Deceased’s death, the Defendants (the Deceased’s three sons) brought a counterclaim, arguing that the 2015 Will was not valid as the Will was executed under undue influence from the Claimant.

The High Court concluded that the Claimant had demonstrated that her mother had the required testamentary capacity at the time she gave instructions for, and executed, the 2015 Will and that the Deceased was suffering from no disorder of the mind which had poisoned her affections, perverted her sense of right and wrong, or prevented the proper exercise of her natural faculties. However, the Judge considered the case as to undue influence to have been made out. On that basis, the 2015 Will was invalid.

The Appeal Decision

The Court of Appeal held the Judge was mistaken in finding there to have been undue influence. Lord Justice Newley stated, for coercion to be proved, it had to be shown to be more probable than any other possibility. The Court of Appeal did not think there was any question of coercion, and set out their reasoning.

Firstly, the Court of Appeal discussed how Dr Qaiyum confirmed that the Deceased had mental capacity, at the time of creating the 2015 Will and had entered "not applicable" in the box headed "comments on undue influence/vulnerability" during their meeting. The Court of Appeal did not think the Judge had taken into consideration Dr Qaiyum’s comments when stating the Claimant was frail and vulnerable which he related to undue influence.

The Judge discussed how the Claimant’s argumentative and forceful personality was a factor which created the possibility of undue influence, however the Court of Appeal stated people with forceful personalities do not routinely, let alone invariably, exercise undue influence.

The Deceased being dependent on the Claimant was a factor in which the High Court Judge favoured undue influence. The Court of Appeal however highlighted that the care in which the Claimant was providing to the Deceased, in the six years since she had come to live in the property, could very plausibly have led her to wish to make particular provision for the Claimant, without being subject to any undue influence, especially when her perception was that her sons had abandoned her.

As the Deceased requested for the Claimant to attend her Will meeting, the High Court Judge believed the Deceased saw herself under the Claimant’s power. However, the Court of Appeal highlighted that it could be reasonable that the Deceased wished for the Claimant to know that she was grateful for the care she had provided, since the heart attack.

Within the judgment, the High Court Judge stated the Claimant put undue pressure upon the Deceased to change her 1986 Will, so as to leave the property to her. The Court of Appeal could not see how this followed. They stated the Claimant could have encouraged the Deceased to create a new Will due to the time passing since her first Will, which was a reasonable suggestion.

The Court of Appeal also disagreed with the Judge’s point on the Claimant arranging the meeting with the solicitor, as they confirmed this was a very common request from elderly parents and pointed out how the Claimant was not present at the meeting on the 7th  December at which the 2015 Will was not only executed but revised.

The Court of Appeal then went onto discuss the Judge’s point on how the Claimant failed to disclose the existence of the 2015 Will to anyone before the Claimant’s death. The Judge said that the only conceivable explanation for the omission to disclose the changes to the 1986 Will is that the Claimant wished to ensure that those changes should only become known to the Defendant’s after the Deceased’s death because that would make it more difficult for them to challenge the 2015 Will. The Court of Appeal could not accept this point. In cross examination the Claimant was insistent that it was up to the Deceased, and not her, to decide what to tell the Defendants about the 2015 Will.

A further, and important problem with the reasons which the Judge gave for finding undue influence to have been established, is that it is not apparent that he took sufficient account of the evidence of the solicitor, Dr Qaiyum and Ms Batson, all of whom the Judge accepted to be reliable witnesses.

Mrs Sukul, the solicitor, whom the Judge found to be a "competent solicitor in the field of wills, probate, and the administration of estates" as well as "a reliable, honest, and satisfactory witness", gave evidence to the effect that she had seen no reason to believe that there had been coercion and that the Deceased had been clear and consistent about giving the property to the Claimant. Dr Qaiyum said that he had no reason to believe that the Deceased was being coerced or under influence and that the Deceased had repeatedly told him when the Claimant was not present that she wished to give 5 Brenda Road to the Claimant, who had looked after her for years, caring for everything and had nowhere else to go.

Ms Batson, who lived in the same house as both the Deceased and the Claimant, described the Deceased as strong-minded, stubborn and not a push-over and said that the Deceased had reacted badly to Nino and David deciding to give up on her care and that the Claimant had never abused the Deceased at all, whether physically or verbally.

Lord Justice Newey, Lord Justice Arnold and Lord Justice Moylan agreed to the appeal and dismissed the counterclaim.

Significance

This case will be of great interest to practitioners in this field. The first instance decision gave an important reminder to lawyers that the reasoning behind the making of a Will, will always be looked into and you should therefore always question your client’s decisions during the initial Will meetings and ensure you well document any information given to you by the testator for their reasons.

Another point to note from the judgment is the importance of the solicitors’ and medical experts’ opinion. The solicitor believed that the Deceased had capacity and was not under any influence. Due to the solicitor being a compatible and reliable solicitor, the Court of Appeal took her comments into real consideration when coming to their decision.