When a Will is perceived to be unfair, this can lead to concerns that the person making it may not have done so of their own free will, and they may have been persuaded or even forced to alter it to favour a particular beneficiary. Put simply, have they been subjected to undue influence?
Questions such as why would a parent favour one of their children over the others, or why would a person leave their estate to a carer who had been paid to look after them, rather than their family, naturally follow. Such concerns may be further exacerbated by the fact the testator or testatrix is elderly, vulnerable, and is often reliant upon the very person who now stands to benefit substantially under their Will.
Regularly in these types of situations, a new Will only comes to light after a person’s death. The person benefitting will of course have a financial incentive in proving the Will is valid and maintaining that there are no grounds for it to be challenged.
Quite often, undue influence goes on ‘behind closed doors’. The very nature of it often means that there is little or no direct evidence to support a claim.
Successful claims for undue influence are rare. In one of the more high profile claims for undue influence, Schrader v Schrader[1], the Court did agree that undue influence could be established by way of circumstantial evidence. In Schrader, the Court took into account the fact that the testatrix was vulnerable and was highly dependent upon her son Nick (the person who benefitted from the 2006 Will) and the reason given for the testatrix leaving her house to Nick was inaccurate. Nick was said to have a forceful personality and took part in the preparation of the Will, although later sought to distance himself from it. Taking a combination of those factors into account, the court concluded that the testatrix had been unduly influenced to prepare the 2006 Will and therefore the terms of her earlier 1990 Will were to apply.
In the more recent case of Rea v Rea[2] the trial judge referred to a body of circumstantial evidence when deciding that the most recent Will of the testatrix, Anna, was invalid. This included evidence that Anna was physically frail, wheelchair bound and hard of hearing. Anna was potentially vulnerable and largely dependent upon her daughter, Rita. Rita was found to have a forceful physical presence. Further, Rita had organised the appointment with the Will writer for her mother and was even present at the appointment itself. The Will constituted a major departure from Anna’s previous will. Rita then kept her mother’s new Will secret from her brothers.
However, on appeal, the decision at first instance was overturned. The Court of Appeal considered the same factors that the Judge at first instance had considered. They considered whether or not Anna was able to think for herself and distinguished this from her being physically vulnerable. The Court of Appeal also considered Rita’s character, the departure from Anna’s previous will, the timing of it and how this was communicated to Anna’s other children. As regards each factor the Court of Appeal decided there was a perfectly plausible explanation for each factor. They therefore reversed the decision and Anna’s more recent will was declared valid.
Both Schrader and Rea remain good law and these cases very much turn on their own facts However, taking into account the approach adopted by the Court of Appeal it is now far harder to imagine a situation where the available circumstantial evidence (assuming there is no direct evidence of undue influence) would be sufficient to allow the court to reach a conclusion that there had been undue influence.
There will need to be a careful analysis of the facts of each case and it is therefore best to seek legal advice if you are concerned about the validity of a Will.
[1] [2013] EWHC 466 (Ch), [2013] W.T.L.R 701, [2013] 3 WLUK 258
[2] [2024] EWCA Civ 169, [2024] 2 WLUK 362, [2024] 1 P. & C.R. DG24