Rea v Rea, Rea and Rea

So, what happened?

My client, Rita, has been in litigation since 2016 over her late mother’s Will which left a small gift to each son, and left the family home to Rita solely.

Rita's brothers, bringing the claim, made various allegations including that:

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

We argued that the allegations were made with no evidence and that the brothers were “grasping at straws”. Rita’s position is that she was the sole carer for her mother in the last 7 years of her life and that her late mother had felt abandoned by her sons (which is really important), hence her decision to leave her assets in the way she did.

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

The trial judge’s order was overturned in 2022 due to an unfortunate procedural error he made when conducting the trial, and so the court of appeal ordered a re-trial which was heard in July 2023.

The second trial judge ruled that Rita’s late mother did have the testamentary capacity to make her Will (which was verified at the time by her doctor and the solicitor who drafted the Will), she knew and understood what she was doing and that her mind was not poisoned by Rita. He also found, surprisingly, that undue influence had been exercised by Rita in relation to the making of the Will. He also found, crucially, that it was open to Rita’s mother as “a matter of historical fact” that her sons had abandoned her. ?

Our view was that the Judge was wrong to find undue influence, so for the last few months, Britton and Time Solicitors have been working in the appeal of that decision, instructing Mr. Robert Deacon of Thomas More Chambers as counsel.

I am pleased to share that judgment was given by the court of appeal in Rita’s favour again.

Three of England’s most senior judges have determined that the second trial judge was wrong to have found undue influence, and that he misapplied the law.

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The Law

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 has effectively said that, in order 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”.

This decision will surely put Rea v Rea at the top of the list of authorities for undue influence claims.

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What next?

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

Contentious probate and trust disputes is one of my favourite areas of law, so it was a genuine pleasure 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 out of a Will or a Trust, please contact me using the details below!

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