Rea v Rea & ors [2023] WTLR 1509

Analysis

The dispute concerned which will of the deceased, Anna Rea, should be admitted to probate. Her first will dated 29 May 1986 gave all of her property to such of her four children as should survive her, if more than one in equal shares absolutely, subject to them surviving her by 28 days (the 1986 will).

A more recent will dated 7 December 2015 (the 2015 will) was witnessed by the solicitor who prepared it and the deceased’s GP. It provided for the deceased’s house to be left to the claimant, on account of the care she had given the deceased, with the residue to be divided between her children in equal shares. The 2015 will also contained a clause providing that in the event that any of the deceased’s sons were to challenge the will, the executors were to defend any such claim.

The parties to the claim were the deceased’s four children. The defendants challenged the 2015 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.

The matter had originally been tried in 2019 by a Deputy Master. The Deputy Master had found for the claimant and ordered that the 2015 will be admitted to probate. On a second appeal to the Court of Appeal, a retrial had been ordered.

The court heard evidence from the solicitor who prepared the 2015 will and the deceased’s GP who had prepared a capacity assessment and been present at the execution of the will. The court also heard evidence from the parties and a number of lay witnesses.

Held:

1. (1) The court was entirely satisfied, based on the evidence of the solicitor and the GP, that the deceased had testamentary capacity. The failure of the GP to complete all parts of the capacity assessment was a failure of form rather than substance. The deceased:
   1. (a) understood the nature of the act of making the 2015 will and its effects;
   2. (b) understood the extent of the property of which she was disposing by that will; and
   3. (c) was able to comprehend and appreciate the claims of her four children and their children.
2. (2) Capacity was a separate issue from whether the deceased’s mind had been poisoned against her sons. The deceased’s statement that she had been abandoned by her sons (the defendants) was harsh but one open to her as a matter of historial fact. The provision in the will requiring her executors to defend any claim against the will was to be considered in that context.
3. (3) It was clear, taking into account the evidence of the solicitor and the GP, that the deceased knew and approved of the contents of the 2015 will.
4. (4) The challenge to the validity of the 2015 will turned on the issue of undue influence. The burden was on the defendants to prove undue influence to the civil standard, the balance of probabilities. The evidence required had to be sufficiently cogent to persuade the court that the explanation for the 2015 will was that the deceased was overborne by coercion rather than there being some other explanation.
5. (5) The defendants had established undue influence to that required standard. The facts were consistent only with the claimant having procured the making of the 2015 will by exercise of undue influence. The court identified the following key factors in concluding that there was solid reliable evidence:
   1. (a) The deceased was frail and wheelchair bound, and required constant care. The claimant was argumentative, with a forceful personality, and physically imposing.
   2. (b) The deceased was dependent on the claimant.
   3. (c) The claimant’s position that she did not know of the deceased’s proposed changes to her will lacked credibility.
   4. (d) The change was made days after two of the defendants had withdrawn from assisting with caring for their mother, leaving the claimant as principal carer.
   5. (e) The claimant made the arrangements with the solicitor to take the 2015 will and the deceased insisted she was present.
   6. (f) The terms of the 2015 will were a major change from the earlier will. The language used was not wording the deceased would have used. The claimant had proposed changes to the terms which the deceased had rejected, as recorded in the solicitor’s notes, but these did not impact on the gift of the house to the claimant.
   7. (g) The evidence of the solicitor and GP, that the deceased stated she was leaving her house to the claimant as she had nothing, indicated that the deceased did not appreciate the claimant still owned a flat with substantial equity. The claimant had discussed selling the flat and did so in 2016. She had a good reason to ensure that she would remain housed in the deceased’s home.
   8. (h) The deceased and the claimant both failed to tell anyone about the 2015 will and the claimant then lied as to the circumstances in which the 2015 will came to be made.
6. (6) The essence of fraudulent calumny is that the person making the statement to the testator either knows the statement is untrue or does not care if it is true or not. The claimant genuinely believed that the defendants had abandoned care of their mother. It was not a case of fraudulent calumny.

The court pronounced in favour of the 1986 will and against the 2015 will.

JUDGMENT HHJ HODGE KC: I: Introduction [1] This is my reserved judgment following the retrial, over four days from 4 to 7 July 2023, of this contested probate claim, which was issued as long ago as 5 July 2017. The claimant is represented by Mr Robert Deacon (of counsel), instructed by Britton & Time Solicitors; …

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