Analysis
Anna Rea had made wills dated 29 May 1986 (the 1986 will) and 7 December 2015 (the 2015 will).
At first instance, Anna’s daughter (the appellant) claimed to propound the 2015 will in solemn form. Her brothers (the respondents) counterclaimed to set aside the 2015 will, alleging lack of testamentary capacity, want of knowledge and approval, undue influence, and fraudulent calumny. They sought to propound the 1986 will.
The claim had previously been tried and then appealed, ultimately to the Court of Appeal, where a retrial was ordered.
On the retrial, HHJ Hodge KC found the 2015 will to be valid on all grounds, save for undue influence. The judge pronounced in favour of the 1986 will.
The Court of Appeal, Newey LJ giving the leading judgment, allowed Anna’s appeal, set aside the finding of undue influence, and pronounced in favour of the 2015 will.
Held:
- (1) The extent to which the court would have regard to inherent probabilities in an undue influence claim would depend on the facts, however it would ‘commonly be appropriate to proceed on the basis that undue influence is inherently improbable’. This was such a case.
- (2) Undue influence did not have to be ‘necessarily inconsistent with any alternative hypothesis’ to be made out, but it did have to be more probable than any other hypothesis. If another possibility was equally likely, the allegation would fail.
- (3) That Anna was frail and vulnerable did not mean that she was suggestible or unable to think for herself, especially where the judge was entirely satisfied of her capacity.
- (4) Rita may have had a forceful personality, but people with forceful personalities ‘do not routinely, let alone invariably, exercise undue influence’.
- (5) That Anna was dependent on Rita did not, on its own, afford evidence of undue influence.
- (6) It was ‘commonplace for elderly people to ask their children to make appointments for them’ and this alone was not a basis for a finding of undue influence.
- (7) That a clause of the 2015 will was found to have been drafted in Rita’s language had not been put to Rita in cross-examination.
- (8) Rita’s desire to secure ownership of a property by will could provide a motive for either coercion or persuasion.
- (9) Persuasion, rather than coercion, was an equal explanation for Rita’s failure to disclose the existence of the 2015 will.
- (10) Insufficient weight was placed on the evidence of witnesses, including the solicitor who drafted the 2015 will, who had seen no reason to believe Anna had been coerced.
- (11) There was no direct evidence of coercion, nor did the circumstances of the case justify such an inference.
- (12) Coercion was not more probable than any other possibility. The circumstances were equally consistent with Anna making a new will of her own accord or being encouraged (rather than coerced) into doing so by Rita.
Appeal allowed and the 2015 will admitted to probate in solemn form.
JUDGMENT LORD JUSTICE NEWEY: [1] This appeal concerns the validity of the will (‘the 2015 Will’) which Mrs Anna Rea (‘Anna’) made on 7 December 2015. Anna died in the following year, on 26 July 2016, aged 85. Her four children survived her and are the parties to these proceedings. Anna’s daughter Rita is the …Continue reading "Rea v Rea & ors [2024] WTLR 701"