Setting Aside A Will For Undue Influence – Recent Cases In 2023

There are various methods of challenging the validity of a Will, one of which is to show that undue influence had been exerted on the deceased.

This is by far the hardest way of setting aside a Will and that is reflected by the fact that there has only ever been a handful of successful cases determined in the court.

There must have been ‘coercion’ rather than just ‘persuasion’, and that is concept which most lay clients struggle with.

The leading case of Killick v Pountney (1999) sets down the 5 part evidential test requirements:

• i) The coercer was in a position to exercise influence
• ii) The coercer did exercise influence over the deceased
• iii) The influence so exercised was ‘undue’
• iv) The undue influence was exercised in relation to the Will
• v) It was by means of the exercise of that undue influence that the will came to be executed

The form of the undue influence can take many forms: an instant act of pressure, intimidation, domination, control, or emotional pressure (Walker v Walker (2007)).

Simply put, the undue influence must be the only reasonable explanation rather than one of the possible explanations (Ark v Kaur (2010))

There were two recent cases in which a court had to decide whether a Will was invalid on the grounds of undue influence – one succeeded and one failed.

Copley v Winter (2023)

This matter concerned the will made by Elaine Doris Lodge. Elaine died on 22 February 2019 whilst she was in a care home. She had lived with her friend Brenda Stephenson who died earlier on 16 February 2018.

Victoria Elizabeth Copley was the granddaughter of Brenda and the claimant in the case. Daniel was son of Josie, a friend of Elaine although he himself also became a friend of Elaine’s and lived next to Church Lane and was the defendant.
Elaine owned a house (the Rowans) and land (Lund Hill Lane and Church Lane) on which she kept horses

Elaine had made wills in 1992, 25 March 2011 and 21 January 2017. She then made a final will on 11 January 2019.

The argument centred around whether it was the 2017 or 2019 will which was the last valid will of Elaine’s. In the 2017 version, Church Lane Land was left to Daniel and in the 2019 version gave this to Victoria (with an expression of wish that if she chose to sell she would offer this to Daniel at market value first)

Court proceedings started in October 2021 accumulating in a 3 day trial in April 2023 with judgment being handed down in July 2023. Some 8 witnesses were called to give evidence.

The judge went to great length to summarise the evidence he heard as well as documentation from the will file in over 50 pages.

Evidence he found which did not support undue influence of Elaine by Victoria, included

• That Elaine had previously thought through carefully changes in her will to reflect what she wanted to achieve
• The claimant’s evidence that she did not exercise undue influence
• The evidence of several witnesses including Ms Fletcher (the solicitor), that Elaine appeared to be in control of her faculties and that there was no indication of the exercise of undue influence;
• The evidence that a GP in assessing the position on 14 January 2019 and
• Tina on the admission to Victoria House on 15 January 2019 considered her to have relevant capacity

This was despite the fact that he found that Victoria had lied in her evidence especially about an argument which had occurred with Elaine.

Rea v Rea (2023)

This concerned the will of Anna Rea. She died on 26 July 2016 and was survived by her three sons (Remo, Nino, and David) and well as daughter (Rita) having been divorced from her husband many years ago.

Anna had a number of health conditions and there was uncertainty of her ability to understand and communicate in English.

Anna first made a will on 29 May 1986 and left her estate in equal shares to her 4 children. Her latest will was then made on 7 December 2015 by solicitors and was witnessed by the instructed solicitor and her GP. Anna left her property as a gift to Rita and the residual was then to be divided to the 4 children. Part of the will included a clause which stated:

I DECLARE that my sons do not help with my care and there has been numerous calls for help from me but they are not engaging with any help or assistance. My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me and I do not wish for them to share in my estate save what 1 have stated in this Will

Unfortunately, this matter first started in 2016, was heard at a trial in September 2019 but following a successful appeal, a re-trial was directed which took place in July 2023 (over 4 years later), with judgment then handed down at the end of July 2023.

Despite the persuasive evidence of the two professionals (legal and medical) and whilst the judge found that Anna did have testamentary capacity, he concluded that there had been undue influence exerted by Rita over Anna.

The judge cited a combination of the following factors in his decision:

• Anna’s frailty and vulnerability. Wheelchair-bound, hard of hearing, and requiring constant care and attention, Anna’s quality of life was limited.
• Anna’s dependency upon Rita. Apart from the assistance rendered by Paula, Anna was entirely dependent upon Rita. Anna’s predominant expressed state of mind was a sense of total abandonment by her three sons.
• Rita’s evidence about how Anna communicated her wish to change her 1986 Will.
• Timing of the making of the new will, a matter of days after first David, and then Nino, withdraw their assistance to Rita in caring for their mother, and following almost 30 years during which the 1986 Will had stood unaltered.
• Rita made the arrangements for Anna to make the 2015 Will, albeit with a solicitor previously unconnected with Rita; and Anna insisted that Rita should be present at the meeting at which the instructions for the 2015 Will were given.
• The terms of the 2015 Will. This effected a major change in Anna’s testamentary wishes from her previous will, which had stood for nearly 30 years, by substantially disinheriting all of Anna’s three sons, leaving the only substantial asset in Anna’s estate to her daughter.
• Failure of both Anna (as testatrix) and Rita (as the only named executrix who knew anything about the 2015 Will) to disclose its existence to anyone before Anna’s death.

When viewed in combination, in my judgment these factors all point inexorably to the conclusion that Rita had pressured Anna into making a new will, leaving the house to Rita, not by convincing her mother that this was the right thing to do, but by applying some form of improper influence over her to procure the testamentary gift of the house in her favour, cutting out the sons who had stood to share equally in the estate for almost 30 years. Why else did Rita feel it appropriate to lie about the circumstances in which the 2015 Will had come to be made? Why else should Rita have kept quiet about it, even to her friend Paula, who shared the house with Rita and Anna, until after Anna’s death?

In my judgment, these factors all provide solid, and reliable, evidence that the effect of Rita’s coercion was that Anna made a will that did not reflect her true testamentary intentions, which Rita had overborne.

Final Words

You can see how much circumstantial evidence is required and the high burden of proof. This means that undue influence allegations should not be embarked on lightly as you may find that any benefit is largely superficial and much of the estate can become diminished by legal costs.

This was more so in the Rea case given that effectively two trials had taken place and it was a real shame that the parties could not agree an amicable settlement through the 7 years of litigation

If you require legal advice concerning contesting a will based on undue influence, contact our dispute resolution experts on 0808 271 9413 or request a callback online.