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Two new cases in contested Probate litigation.

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This week saw the handing down of two Judgements in two areas of Contested Wills the first was a retrial of a matter in respect of a claim for Undue Influence in the matter of Rea and Rea.

[2024] EWCA Civ 169 The second related to a successful challenge to a Will on the grounds of lack of capacity and want of knowledge and Approval in Leonard -v- Leonard [2024] EWCH 321

Leonard -v- Leonard [2024] EWCH 321

The will was prepared by a tax adviser who did not meet the testator for almost a year before the will was executed, and the 'golden rule' was not followed.  The will was found invalid for lack of capacity on limbs 1 and 4 of Banks v Goodfellow, and for want of knowledge and approval.

The case is particularly striking because the court reminded the parties that the obtaining of retrospective medical reports from capacity experts may help the court in terms of the interpretation of medical records and tests which the deceased may have had and they can provide an opinion of the effect and impact on the memory and cognition in respect of the deceased condition(s) The test for capacity is a legal one and not a medical one.

The case also reaffirmed that it is not a test of memory, and it is not essential that the testator cannot recall all of his assets, previous Wills or testamentary promises.

The court also ruled that the fourth limb of Banks and Goodfellow is not limited to insane delusions but extends to any disorder of the mind that perverts one’s instincts and affections.

Rea and Rea [2024] EWCA Civ 169

This was the re-trial of a case previously decided in 2019 by a deputy master and the upholding of the master’s decision in the High Court in 2021 that the will was invalid on the grounds of undue influence. In 2022 the Court of Appeal ordered a retrial. Judgement from the retrial was handed down on 23rd February 2023.

On the retrial, HHJ Hodge KC found that Mrs Rea had capacity, knew and approved the will, and dismissed any notion of fraudulent calumny, but found that the will was invalid by reason of Rita's undue influence.

HHJ Hodge KC had listed 8 circumstances which together he considered provided reliable evidence that Rita must have exercised some form of improper pressure on her mother, as many will know these cases are difficult to succeed upon and usually require evidence of actual undue influence.  However, in this case the Judge decided that even in the absence of direct evidence: Undue influence was made out, these 8 reasons were:-

Mrs Rea's frailty;

her dependence on Rita;

unsatisfactory evidence from Rita about how Mrs Rea indicated she wanted to change her will;

the timing of the new will;

the fact Rita organised it; the will's terms (leaving the house to Rita, having previously divided the estate equally);

concerns about motivation.

and a failure by anyone to disclose the will's existence until after Mrs Rea's death.  The CA went through the 8 points one by one, rejecting each of them individually as a basis for a finding of coercion.

So, the CA held that the evidence was incapable of justifying a finding that undue influence was the most likely explanation for the new will, as opposed to persuasion, or simply a free decision by Mrs Rea.

This decision simply re-affirms how difficult it is to establish a claim for undue influence and the high bar which the court has set to establish such a claim.

For specialist advice on claims seeking to challenge the validity of the Will please contact me.