How we changed the law in England.

I first met Rita for a consultation at our office in Mayfair, London. She was incredibly shy, nervous, and clearly under a lot of stress and pressure. Little did I know that the source of all this was her brothers.

You see, Rita has been embroiled in litigation since 2016 after her dear mother, Anna, passed away. In 2015 Anna made an update to her Will that hadn't changed since 1986.

What did Anna do?

Anna, in recognition of her devoted daughter, Rita, left the family home solely to Rita, with the rest of the estate to be split among the four children, including Rita and her three brothers. Why?

Well, Rita, now 61, had dedicated her entire life to caring for her mother, who had diabetes and, as she aged, had become more frail. Rita sacrificed having a relationship of her own, while her brothers pursued women, their careers, had children, started businesses, and built their families. Rita did not have the time for any of the luxuries that her brothers were enjoying.

In recognition of Rita's sacrifices, Anna consulted a solicitor and spoke to her doctor about the changes she wanted to make to her the Will and of her obligation to Rita, to ensure that Rita was housed and provided for, just as Rita had provided for Anna.

Both the doctor and the solicitor met with Anna alone. They assessed Anna's capacity to ensure she understood her actions (that she knew her own mind) and that Anna appreciated the consequences of her decision, i.e., the fact that her sons would receive less upon Anna's passing.

Anna was resolute, explaining that her daughter could not be expected to start from zero at the age of 61. She highlighted that her daughter was the only one who had been there for her and that her sons had, as she felt, abandoned her in old age to follow their own interests.

What did the brothers do?

The brothers could not accept that their sister, Rita, was receiving the house (valued at approximately ￡1 million) and decided to challenge her in court. They made various allegations, including:

1. Their mother lacked the testamentary capacity to make her Will;
2. Their mother did not understand or approve the contents of the Will;
3. Rita had coerced their late mother into making a Will that would only benefit her; and
4. Rita had poisoned their mother’s mind into believing that her sons had abandoned her.

Britton and Time Solicitors argued that the allegations were made without any merit or evidence and that the brothers were “grasping at straws.”

Rita's position was that she had been the sole carer for her mother in the last decade of Anna's life and that her late mother had felt abandoned by her sons, which led Anna to leave her house to Rita.

The first High Court hearing:

The case was heard in 2019 before a senior judge in the High Court, who dismissed the brothers' claims, finding that the brothers had fallen well short of establishing undue influence and substantiating the other allegations.

The brothers appealed:

Claiming they had received an unfair hearing in the High Court, the brothers took the case to the Court of Appeal, which overturned the 2019 judgment and ordered a retrial in the High Court by a different judge.

The second High Court hearing:

The second trial judge ruled that Rita's late mother did indeed have the testamentary capacity to make a will (which, as mentioned earlier, was verified at the time by her doctor and the solicitor), and that Anna knew and understood what she was doing.

To our total surprise, the judge also found that undue influence had been exercised by Rita in relation to Anna making the 2016 Will. Most crucially, the judge found that it was a "matter of historical fact" that Rita's mother believed her sons had abandoned her.

Believing the judge was plainly wrong to find undue influence, Britton and Time Solicitors continued the case and appealed to the Court of Appeal. Knowing the law, we could not let Rita down, despite her having depleted all her funds.

The outcome:

The Law Lords agreed with us, and judgment was given by the Court of Appeal in Rita's favour. The three Law Lords, England's most senior judges, determined that the second trial judge was wrong to have found undue influence and that he misapplied the law.

So, what is the Law on undue influence?

When considering whether undue influence has been exercised, one of the judges in the Court of Appeal helpfully clarified the law:

"Undue influence can be proved without demonstrating that the circumstances are necessarily inconsistent with any alternative hypothesis. On the other hand, the circumstances must be such that undue influence is more probable than any other hypothesis. If another possibility is just as likely, undue influence will not have been established. When making that assessment, moreover, it may well be appropriate to proceed on the basis that undue influence is inherently improbable."

The judge said that, for undue influence to be proved, the court must consider the possible innocent explanations for the conduct. Undue influence must be more probable to have given rise to the conduct (in this case, making a Will) than the innocent explanation. Simply being a possible reason is not sufficient, taking into account that undue influence is unlikely. The judge also clarified that "mere persuasion" or "encouragement" is not undue influence. This can be helpfully demonstrated with the following example: if you suggested to your parents that they should leave their property to you under a Will, to the exclusion of your siblings, this is not undue influence. However, if you were to phone your parents every day, pressuring them to change their Will, and your parents only did so because of your pressure, that would be undue influence.

In this case, the Court of Appeal found that Rita's mother's belief that her sons had abandoned her was a perfectly innocent explanation for leaving the Will in the way she did. Crucially, the trial judge found that it was open to her to believe this, which undermined his entire judgment and showed that he had failed to consider the innocent explanations as required by law.

The judge finalised his judgment by saying:

"I do not consider that the evidence before the Judge was capable of supporting a finding of undue influence."

The case of Rea v Rea is now the leading authority for undue influence claims in England and Wales.

What next?

This case began in 2016 and has now reached its conclusion. Provided there is no appeal to the Supreme Court by the brothers, probate can finally be administered, and a long saga can be put to rest.

Contentious probate and trust disputes are one of Britton and Time Solicitors ' specialist areas of law, so it was a genuine pleasure for us to work on this case and see it through to justice.

If you have any concerns or are dealing with any form of conflict arising from a Will or a Trust, please contact us using the details below.

Leonardo Bosco - Paul Britton - Elisabeth Squires - Robert Deacon - Sophie Campbell-Adams