Will Successfully Overturned Due to Undue Influence

Published: September 29th, 2023

7 min read

The recent case of Rea v Rea & others (2023) reminds us that although it is tough to challenge the validity of a will on the grounds of undue influence, it is by no means impossible.

Anna Rea died in 2016 leaving four sons and one daughter. Anna Rea had a long-standing simple Will for 30 years leaving all her property to her surviving children equally. That changed in 2015, where her new Will left her most substantial asset, her house, to her only daughter. The 2015 Will was prepared by a qualified and experienced solicitor who also witnessed it together with the deceased's GP. The 2015 Will also has a non-contest clause. This explained that the reason Anna Rea had cut her sons out of the will is because they did not help care for her. Whilst this type of clause is of questionable effect, the reasoning, along with the drafting of the 2015 Will, appear fatal to any claim made by anyone opposing the 2015 Will. Nonetheless, Anna Rea's three sons challenged the validity of their late mother's last Will and the question before the court was whether Anna Rea had been unduly influenced by her daughter in the making of the 2015 Will.

Undue influence claims are extremely challenging to prove due to how sensitive they are, and because there is often little direct evidence available. This means the court relies predominantly on circumstantial evidence and given the need to show that a testator's disposition was obtained by coercion, the evidence required to successfully prove undue influence needs to be strong.

The key factors the court considered were:

  1. The contrast between Anna Rae's frailty (being hard of hearing and wheelchair bound) and the daughter's personality;

  2. Anna Rae's dependency on her daughter;

  3. The Court did not believe the daughter's evidence as to why the mother wished to make a new Will;

  4. The timing of the 2015 Will was suspicious as it was made days after two of the four sons withdrew their assistance to their sister in caring for their mother;

  5. The daughter arranged the Will appointment for the mother to attend the solicitor and was present throughout the meeting;

  6. The 2015 Will was a major change from the 1986 Will and the language used was the daughter speaking through her mother;

  7. The reasons given for the mother leaving the property to her daughter were suspicious; and

  8. It was suspicious that neither mother nor daughter had told anyone else about the Will.

The Court held that, combined, all these factors, provided solid evidence as to coercion and undue influence. As such, this case is a rare example that successfully challenging a will on the grounds of undue influence is by no means impossible.

If you have any concerns about a testator being unduly influenced into preparing a will, then contact the Contentious Trusts and Probate team at Forbes Solicitors LLP, who will be able to assist you with your investigations.

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