Sister who exercised undue influence over mother loses at fourth round of litigation in EWHC

Thursday, 03 August 2023
The three sons of the late Anna Rea (the deceased) have won the fourth round of litigation against their sister (the claimant) over the deceased’s GBP1-million estate.
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The deceased made a brief will in 1986, giving all her property to be shared equally among her  surviving four children. Her second and last will was prepared in December 2015 by a qualified and experienced solicitor, who also witnessed it together with the deceased’s GP. It was a much more elaborate document but, in essence, gave the deceased’s house to the claimant absolutely 'as she has taken care of me for all these years'. Each of her four children would receive one-quarter of the residue. There was a specific clause making it clear that the deceased’s sons (the defendants) were not to have anything more than this bequest because they had not helped her in her old age.

The defendants challenged this will on the grounds of want of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny practised by the claimant on the deceased. None of them were present when the solicitor was instructed or when the will was executed and their case was largely based on inference from the circumstantial evidence. They argued that the 2015 will represented a volte-face from the intentions expressed by the deceased in the 1986 will, which she had maintained for a period of almost 30 years. The defendants argued that reversal of that intention during November 2015 suggested that the claimant had caused the deceased to fundamentally change her intentions.

That claim was heard by Deputy Master Arkush in September 2019, with judgment handed down in the claimants’ favour. However, the defendants appealed on the grounds that Arkush had unfairly refused to allow them a full cross-examination of the claimant. The judge in that case, Johnson J, dismissed the appeal, but agreed that Arkush had made a mistake in restricting the defendants from cross-examining the claimant on certain key issues.

The defendants then took the case to the England and Wales Court of Appeal (EWCA), which accepted their argument, set aside the previous orders and ordered a new trial of the matter. The EWCA described this as a 'most unfortunate result', not least because of the additional legal costs incurred, and urged the parties to settle. This turned out to be impossible and the case duly went back to the England and Wales High Court (EWHC).

Hodge HHJ in the EWHC has now given judgment. He rejected the challenges on grounds of capacity and lack of knowledge or consent. However, he held that the claimant did indeed exercise undue influence by coercion over the deceased when she made her last will in 2015. He said that the factors that persuaded him were: the deceased’s frailty and vulnerability; her dependency on the claimant; his disbelief of the claimant’s account of how the deceased expressed her wish to change her will; the timing of the making of the new will; the fact that the claimant made the arrangements for the deceased to make the new will and the drastic change in the will's terms.

Moreover, Hodge said, he did not consider that the deceased would have used the language in the will's final sentence, purporting to express her wish that her executors should fight any claims by the defendants on the estate. That, said Hodge, 'is not language that I consider that [the deceased] would ever have used...rather it is [the claimant] speaking through [the deceased]'. Another factor was the failure of both the deceased (as testatrix) and the claimant (as the only named executrix who knew anything about the 2015 will) to disclose its existence to anyone before the deceased’s death.

Accordingly, he concluded that the claimant had pressured the deceased into making a new will leaving the house to her, not by convincing the deceased that this was the right thing to do but by applying some form of improper influence over her. However, he rejected the defendants’ accusation of fraudulent calumny.

Hodge duly pronounced revocation of the 2015 will and in favour of the 1986 will (Rea v Rea, 2023 EWHC 1901 Ch).

Sources

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