In CASE you missed it…
In this new regular feature, we will examine key cases in relation to will writing and other estate planning activities to keep you up to date on recent developments in the law. All cases covered will be recent, relevant, and widely reported. For this installment we’ll look at Rea v Rea & Ors [2019] EWHC 2434 (Ch).
Rea v Rea concerned an inheritance dispute between four siblings over the validity of their late mother’s will. The mother, Mrs Rea, made a will in December 2015 leaving her home which was the main asset of her estate to her daughter Rita. This differed greatly from Mrs Rea’s earlier 1986 will in which she left her estate equally between all four of her children, Rita, Nino, David, and Remo.
Mrs Rea included a clause in her will making it very clear why she had chosen to make little provision for her sons. An unusual approach as these types of statements are usually made in a private letter of wishes. The clause, headed ‘Declaration’ read:
“I DECLARE that my sons do not help with my care and there has been numerous calls 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 I have stated in this Will.”
At the heart of the dispute was the sons minimal contact with their mother in the later years of her life. Mrs Rea lived with Rita and a friend who helped with her care. By 2015 Mrs Rea needed an increased level of care, and Rita, Nino, and David drew up a rota to take some of the burden off of Rita. Remo was not included in the rota as he was living in the United States until 2015, and on his return to the UK seemed to have little involvement with his mother.
Unfortunately, after only a few weeks this arrangement broke down, and Rita returned to being Mrs Rea’s main carer until her death in July 2016, ages 85.
The claim
Rita, the claimant, sought to establish the 2015 will and have it entered into probate in solemn form. The claimant’s brothers sought to defend the claim and denied the validity of the 2015 will, counterclaiming for the 1986 will to be entered into probate. Their grounds for challenging he 2015 will were:
- Lack of testamentary capacity
- Lack of knowledge and approval
- The 2015 will was procured by Rita subjecting Mrs Rea to undue influence
- The 2015 will was procured by fraudulent calumny by Rita on Mrs Rea.
The law
The lack of testamentary capacity claim was dropped in the early stages by the defendants, so I won’t discuss this one.
A testator must know and approve of the contents of their will for it to have any testamentary effect. The court ultimately decided that Mrs Rea did know and approve of the contents of her will. Evidence from the solicitor who prepared the will and the GP who assessed Mrs Rea’s capacity at the solicitor’s behest clearly demonstrated this. The defendants had claimed that Mrs Rea was a simple woman with no mind of her own and limited ability in the English language. Deputy Master Arkush instead found that this was not true, and although her first language was Italian she was perfectly capable of understanding English so long as the speaker used simple language and spoke slowly.
The defendants next claim was one of undue influence. They sought to establish that the will was invalid as it had been procured as a result of Rita exerting undue influence over Mrs Rea to induce her to write a will in Rita’s favour.
The law of undue influence as it applies to wills summarised in the case of Re Edwards [2007]:
- There is no presumption of undue influence, unlike with lifetime gifts where there are certain relationships where influence is presumed
- Whether there has been undue influence is a question of fact
- It is up to the person claiming undue influence to prove that this is the case. The claimant must prove that there is no other explanation, so this is a high burden to overcome.
- For there to be undue influence, the coercion or fraud that has brought about the will must have actually overborne the wishes of the testator
- It is not undue influence if the testator’s judgment is changed – It must be more than mere persuasion.
- The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary to overbear their will.
- A claim that the testator’s mind has been poisoned against a person who would be a natural beneficiary falls under a separate heading of ‘fraudulent calumny’.
- Finally, when determining whether someone has made their will under undue influence, it is not a question of whether the will is ‘fair’ but whether the testator has acted as a free agent.
In the evidence the defendants submitted to the court they attempted to paint a picture of Rita as an ‘angry, violent and vindictive’ woman. They also raised her mental health problems which she had suffered from 30 years before. The court did not accept that this was evidence of undue influence. There was no actual evidence that Rita had exerted and pressure or coerced her mother into writing her 2015 will.
Again, there was strong evidence from the solicitor and GP that led the court to conclude that Mrs Rea had made the new will of her own volition. The gift of the property to Rita also made clear her intentions and stated, “because she has taken care of me all these years”.
Finally, the defendants sought to claim under the heading of fraudulent calumny. This is the making of false and defamatory statements about someone to damage their reputation. In this case they sought to establish that Rita had poisoned Mrs Rea’s mind against her sons by making such statements. It was found that there was no evidence that she had done so, and their case was based on Rita’s supposed ‘bad character’ as discussed above.
Ultimately the defendants claim failed and the 2015 will was declared to be valid.
Points to consider
One quote by Deputy Master Arkush that stands out in this judgement is “…it is not my task to decide whether the 2015 Will was justified or fair. I am only required to decide if it is valid.” Undue influence claims are questions of fact. While in this case the brothers felt they had been unfairly left out, the claim they pursued required a high burden of proof and ultimately had no evidence of coercion outside of their own feelings about their sister’s character.
Another point I should note is that the judge was highly complimentary of the solicitor who drafted the will. She had kept incredibly detailed contemporaneous notes and had approached her instructions with excellent care, skill and professionalism. He also complimented her for her recommendations of a capacity assessment, and for identifying that the 2015 will represented a significant departure from the 1986 will, making sure that she went to great lengths to be sure that Mrs Rea understood what she was doing and has the capacity to do so. Her detailed notes undoubtedly lent great weight to Rita’s claim. He went as far as to say, “If this level of care and competence was applied in every case there would doubtless be fewer disputes about wills coming before the courts.”
The full judgement can be read here: https://www.casemine.com/judgement/uk/5d89b6242c94e010e80af8f4
