A will is probably the most important document that you will sign in your lifetime. If you do not have a will, your estate will be distrusted under the terms of the intestacy rules. This might not be how you would like your estate to be distributed and if it is not what you want, you must have a valid will advises B P Collins’ contested probate team.
What is a valid will?
For a will to be valid there are certain requirements which need to be met. These are:
- You must be 18 years old, or older, when the will is executed;
- You must have testamentary capacity; this means that you:
a. understand the nature of making a will and its effect
b. understand the extent of your property
c. comprehend and appreciate the claims to which you ought to give effect
d. have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of his property; - The will must be in writing;
- The will must be signed by you in the presence of two independent witnesses who are over the age of 18, who must also sign to confirm that they have witnessed your signature.
In addition, when making a will, the testator, which is the person making the will, must not be subject to any undue influence.
What is undue influence?
Undue influence is where someone is placed under unreasonable pressure or coerced into changing their will or writing their will in a particular way. Usually this is to favour the person doing the coercing.
The accusation often occurs when the testator has made a will when they are elderly, frail, unwell, suffering from reduced or impaired cognitive function, or receiving care from the person alleged to have influenced them.
Undue influence is not the same as suggesting or asking the testator to change their will, and the line between suggestion and coercion is extremely fine.
The difference between suggestion and coercion
Coercion means to apply sufficient pressure to overwhelm the testator’s wishes. Elderly or frail people, or those dependent on the person accused of coercion are more likely to be susceptible to undue influence.
Undue influence is not the same as persuading or convincing the testator to change their will. It is also not the same as fraudulent calumny where the testator’s mind is poisoned against the natural beneficiaries of their estate. The key is whether the wishes were truly those of the testator or whether the coercer has overwhelmed their wishes entirely.
This is a very subtle distinction, and one where the courts have struggled to draw a definitive line. It is, perhaps, by design that they have not done so because it will depend on the unique circumstances in each case whether the line was crossed. It is often helpful to look to recent case law to understand examples of undue influence in wills.
Recent case law
Rea v Rea (2024)
In Rea v Rea, there were several claims relating to the will of the deceased. The facts were that the deceased died leaving four children. The claimant was her daughter, Rita Rea, and the defendants were the deceased’s three sons, Remo, Nino, and David.
In 1986, the deceased made a will. It was a simple, one page document which appointed Remo as her executor and split the estate equally between the four children. The estate was not particularly large, and the main asset was the deceased’s home.
In 2009, the deceased suffered a heart attack, following which Rita moved into the deceased’s home with her and became her carer. A friend of Rita’s also moved into the property and lived with Rita and the deceased.
In 2015, the deceased made a new will. This will was prepared by a solicitor. Rita made the appointment with the solicitor and remained in the meeting whilst her mother gave instructions, at her mother’s request. The 2015 will gave the house to Rita and split the rest of the estate equally between her children. In the meeting the deceased said that her sons did not care for her or visit her. The solicitor insisted that the deceased’s GP undertake a capacity assessment. The GP confirmed that he had no concerns about the deceased’s capacity and did not think she was being coerced into changing her will.
Following the deceased’s death, Rita issued proceedings to have the will pronounced in solemn form. Her brothers counterclaimed and said that the will was invalid due to lack of capacity, undue influence, and fraudulent calumny. The trial judge found in Rita’s favour stating that her brothers had failed to prove their allegations.
The brothers appealed the case and in the first appeal, it was determined that there had been a procedural error and the whole case should be retried. In the second trial, the judge found that Rita had unduly influenced her mother into changing her will. He found that Rita had not just persuaded her mother, but given that the deceased was frail and vulnerable, dependent on Rita as her carer, and given Rita’s “forceful” personality and physical presence, it was more likely than not that Rita had coerced her mother into changing her will.
Rita appealed the finding and in the second appeal she was successful. The judge in the second appeal stated that coercion is inherently unlikely in most cases and that potential beneficiaries are more likely to “rely on affection, gratitude, or even persuasion”. Given the seriousness of the allegation, it must be that coercion is more likely than any other alternative explanation. The judge found that the care provided by Rita, with which her brothers assisted very little, if at all, may have provided a plausible explanation as to why the deceased might have wanted to make greater provision for Rita in her will. This is particularly the case given the independent evidence of the solicitor and the GP who both confirmed that the deceased felt that her sons had abandoned her. The judge also found that the evidence was consistent with Rita having suggested to or persuaded her mother to favour her, but in a manner which did not amount to undue influence. Given that these explanations were just as likely as Rita having unduly influenced her mother, the judge overturned the decision and found in Rita’s favour.
Copley v Winter (2023)
The dispute in Copley v Winter was focused on one parcel of land known as “Church Lane”. The deceased had used Church Lane to keep horses, but it had substantial value due to its development potential.
The first will left by the deceased, prepared in 2017, left the land to a friend who lived adjacent to Church Lane.
In 2019 the deceased had been diagnosed with terminal cancer. Her long-term partner had recently died. In January 2019 the deceased made a further will in which she left the land to the granddaughter of her long-term partner. The granddaughter, Victoria Copley, became the claimant in this case. The 2019 will gave instructions that if Victoria wanted to sell Church Lane, she should first offer it to Daniel Winter (the Defendant) to purchase at market value. The deceased died just under a month after signing the 2019 will.
Victoria issued a claim asking the court to pronounce in favour of the 2019 will. Daniel issued a counterclaim stating that the 2019 will was invalid for a number of reasons including undue influence. He asked the court to pronounce in favour of the 2017 will.
Whilst the court found that Victoria’s evidence was unsatisfactory and, at points, inconsistent, the judge found that there had been no undue influence. He found that there was an alternative explanation for the deceased changing her will, which was that she thought Victoria would look after her horses if she was left Church Lane. Given the availability of an alternative explanation, and one where the choice was the deceased’s own, the judge found in Victoria’s favour.
Schrader v Schrader (2013)
The case of Schrader was a dispute between two brothers over their mother, Jessica’s, estate. In 1990 Jessica made a will leaving her entire estate equally between her two sons, Nick and Bill. In 2006 she made a second will which made some small gifts to grandchildren and others, the house to Nick, and the rest of the estate between Nick and Bill equally.
Bill challenged the will on the grounds of capacity and undue influence. Whilst the judge found that Jessica did have mental capacity, he found that the will was invalid on the grounds of undue influence.
In this case there was no direct evidence of coercion (as is often the case) but the judge took account of that fact that Jessica was frail, dependent on Nick for her care, that Nick was a forceful personality and dominating presence, and that Nick had made the arrangements with the will writer. The judge also took into account that Nick held the view that he and Bill had not been treated evenly and that the will ‘evened things up’ between them. It was found that this was unlikely to be a conclusion that Jessica would have reached on her own and without Nick’s influence.
Given that the circumstances in Schrader were similar to those in Rea, it appears that a different judge on a different day might have made a different decision given the same evidence.
How can you prove undue influence in wills?
As shown in the above cases, undue influence can be difficult to prove. The evidence is often circumstantial and whilst the standard of proof is the civil standard (meaning it must be shown that it was more likely than not), given the seriousness of an allegation of undue influence, the courts will consider the evidence very carefully. The cases have also shown that undue influence must be proven to be more likely than any other possible explanation as to why the deceased prepared their will in the terms that they did.
Given the risk of litigation, and particularly that the unsuccessful party generally must pay the costs of the successful party, it is important to seek specialist advice at an early stage to analyse the evidence available.
What should I do if I suspect undue influence?
If you suspect undue influence, a will can be challenged on the grounds of validity. If you are bringing a claim for undue influence this must be specifically pleaded.
Whilst there is no time limit for bringing a claim for undue influence, the earlier claims are brought, the better. Claims should usually be brought before the estate is administered because once assets are distributed, it can be difficult to recover them.
If probate has not yet been obtained on the ‘suspicious’ will, it is often a good idea to lodge a caveat to prevent probate being obtained and the estate assets being sold or distributed whilst the issue of will validity is resolved.
If you require advice or guidance regarding claims to challenge a will, please contact the contentious probate team at B P Collins by emailing enquiries@bpcollins.co.uk or calling 01753 889995.
