Undue influence renders Will invalid

Rea v Rea; Re Estate of Anna Rea [2023] EWHC 1901 (Ch)

This recent case is a timely reminder of the care that needs to be taken when writing a Will for older and/or vulnerable clients.

The case is also interesting in that it is a successful challenge to a Will solely on the basis of undue influence. This is rare. This is a case from the UK but the principles remain the same.

As is usually the case, the Will was also challenged on the basis of lack of testamentary capacity, lack of knowledge and approval, and fraud. However, these challenges were not successful.

In order to prove undue influence, the court had to be satisfied that the Will was a result of coercion – in the sense that ‘the testator’s will is overborne’.

Facts

• Anna Rea died in 2016 at the age of 88. She had 3 sons and 1 daughter, Rita.
• Anna’s first Will was made in 1986 and left her Estate equally to her 4 children.
• Anna’s second and last Will was made in 2015. It gifted her house (her major asset) to Rita. Unusually, the Will included statements that “my sons do not help with my care” and “my sons have not taken care of me and my daughter Rita…has been my sole carer for many years”.

Court decision

The Court was satisfied that Anna had the requisite testamentary capacity at the time she gave instructions for and at execution of the 2015 Will. The Court found that Anna knew of and approved the contents of her 2015 Will – that Anna understood she was giving her main asset to Rita and leaving very little to her sons.

However, the Court found that Rita had pressured Anna into making a new Will and leaving the home to Rita, by applying some form of improper influence to procure the home and chopping out the sons.

In making that decision, the Court relied on the following factors:

• Anna was frail, vulnerable, wheelchair-bound, hard of hearing and required constant care and attention. In contrast to Anna’s limited quality of life, the daughter Rita had an ‘argumentative and forceful personality’ and a ‘forceful and physical presence’.
• Anna was entirely dependent on Rita. This was evidenced by Anna’s refusal, even though it was recommended by the lawyer, to have Rita leave the room when Anna was giving the instructions for her Will.
• the Will was made only days after 2 of the sons withdrew their assistance in caring for Anna.
• it was Rita who made the arrangements for Anna to make the 2015 Will.
• the 2015 Will was a major change to the 1986 Will (a Will that had stood for almost 30 years).
• the language in the Will disinheriting Anna’s sons did not appear to be language that Anna would use but instead appeared to be Rita speaking through Anna.
• Rita’s motives were suspicious as she had debts and had been advised to sell her own property. This meant Rita had good reason to secure ‘a roof over her head’.
• both Anna and Rita had failed to disclose the 2015 Will’s existence before Anna’s death.

Takeaways

Cases like this are very fact specific. However, this case is highly unusual in that the testator was found to have testamentary capacity, but the Will failed because of undue influence.

The case highlights serious challenges for any estate planning lawyer. In preparing the 2015 Will, the lawyer had taken steps to establish testamentary capacity. However, the Court found the lawyer and the doctor had not taken ‘any effective steps to ensure that Anna had been subjected to no undue pressure from Rita’. It is noted the lawyer did attempt to obtain the instructions from Anna without Rita being present and the Court did not specify what additional steps the lawyer should have taken in the circumstances.

Where the circumstances require it, steps need to be taken to rule out any improper influence. The case highlights that the estate planning lawyer:

• cannot simply leave it to the client to ‘self-certify’ that they are acting free of improper pressure or influence.
• will need to explore, question and document the wishes of the testator and any possible influences.

The case also highlights that certain ‘red flags’ of improper influence may appear to the estate planning lawyer, including:

• a testator making a Will which is a significant departure from previous Wills.
• a testator making a Will which favours one or more children over a spouse or other children.
• the age, health and wellbeing of the testator – an elderly, frail or ill person may be more easily influenced and coerced.
• there is dependency on a person, whether physical, emotional or financial.
• someone other than the testator makes the arrangements for the preparation of a Will.
• the motive of any person thought to be exercising undue influence over a testator.

Summary

Assisting elderly or vulnerable clients in their estate planning often presents difficulties. An experienced and specialist estate planning lawyer should be consulted to avoid lengthy, expensive and family-destroying litigation.

The information contained in this article is for general information only and is not a substitute for specific advice. You should obtain specific and appropriate legal advice before any action or decision is taken on the basis of any of the information contained in this article.

Please contact us if you or your clients require any advice on the issues raised in this article.