Will struck out for undue influence is restored on appeal at EWCA

Monday, 26 February 2024
The England and Wales Court of Appeal (EWCA) has overturned the England and Wales High Court (EWHC) decision in August 2023 in Rea v Rea.

It is the fifth round of litigation over Anna Rea's (the deceased’s) disputed will, made in 2015. The will gave the most valuable asset in her estate, her house, to her daughter Rita Rea (the claimant). The deceased’s three sons (the defendants) each received only a quarter share of the residue. They were not told of the 2015 will during the deceased’s lifetime.

When the deceased died in 2016 aged 85, the claimant, who was nominated as executor, applied for probate. The defendants then issued a claim disputing the will's validity, alleging that the deceased had lacked testamentary capacity. They argued that the deceased had not known and approved the will’s contents, that the claimant had exerted undue influence over the deceased and that the will was invalid by reason of fraudulent calumny. The defendants sought orders pronouncing against the 2015 will and in favour of the will made in 1986.

There followed a complex tangle of litigation, starting with a three-day trial in the EWHC in 2019 that concluded that the 2015 will should be admitted to probate. The defendants appealed that finding but lost again in the EWHC in 2021. However, their further appeal to the EWCA in 2022 was successful, the EWCA finding that the EWHC had made a mistake in restricting cross-examination of the claimant on certain issues. The matter was thus remitted to the EWHC in July 2023.

The judge at that hearing rejected the defendants’ claims of lack of testamentary capacity, lack of knowledge and approval or fraudulent calumny. However, he considered the undue influence claim had been made out. He therefore pronounced against the 2015 will, having found the claimant to be an unreliable witness who had given untruthful evidence about the circumstances in which the 2015 will came to be made. He also remarked unfavourably on the fact that the will was not disclosed to anyone until after the deceased’s death.

The claimant then appealed to the EWCA. Her appeal was heard by Moylan LJ, Newey LJ and Arnold LJ, who have now published their unanimous decision that she had not been proved to have procured the making and execution of the will by undue influence.

Giving the judgment, the EWCA acknowledged that the claimant 'may have an argumentative and forceful personality, and [a] forceful physical presence' and had reason to seek to secure the property for herself. However, it also noted that the deceased had testamentary capacity and knew and approved of the terms of the will.

Moreover, it found that there was ‘no direct evidence of coercion’ and two experienced professionals with relevant expertise saw ‘no reason to believe that there had been coercion’. They confirmed that the deceased had ‘consistently expressed her wish’ to leave the house to the claimant even when the latter was not present. She was also, they said, capable of rejecting suggestions from the claimant and of revising her instructions in the claimant’s absence.

Further, the court commented, ‘there was a perfectly rational basis’ for giving the claimant the property, as she had lived there and looked after the deceased for six years, whereas the deceased considered that the defendants ‘did not care for her [and] had abandoned her’.

The EWCA concluded that the EWHC was mistaken in finding there to have been undue influence and the evidence did not entitle it to arrive at that conclusion. The EWCA duly ordered the will to be admitted to probate (Rea v Rea, 2024 EWCA Civ 169).


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