Challenging a Will: The Case of Undue Influence, Capacity Doubts and Fraudulent Calumny

In the case of Rea v Rea [2024], Anna Rea (the deceased) made a Will in 1986 appointing one of her sons to act as a sole executor to her estate. Under the terms of the Will the deceased left her estate equally between her four children.

In 2015 the deceased made a new Will (“the 2015 Will”) appointing her daughter as the executor and whilst it left the balance of her estate to her four children equally, she left her main asset - her property to her daughter Rita. Rita had looked after the deceased and lived with her as her main carer for 6 years.

The Will was prepared by an experienced solicitor and a capacity assessment was obtained which determined the deceased had sufficient capacity to give instructions and the solicitor and the deceased’s doctor acted as witnesses to the Will.

When the deceased died in 2016, Rita applied for Probate (the legal authority for an executor to deal with the assets of an estate). The deceased’s three sons then issued a claim in the High Court disputing the validity of the 2015 Will.

The grounds for that claim were that the deceased lacked testamentary capacity (the ability or understanding to make a valid Will), that the deceased was unduly influenced by Rita into making the 2015 Will, and the 2015 Will was invalid by reason of fraudulent calumny (poisoning the mind of the deceased against a particular beneficiary). The sons sought an order to find against the 2015 Will and in favour of the Will made in 1986.

“Whose Will Is It Anyway?”

The sons argued that Rita had exerted undue influence over the deceased and that the deceased had not known nor approved the 2015 Will’s contents. At trial, Rita was represented, and the sons acted as litigants in person and were therefore unrepresented.

At trial, the Judge found in favour of Rita and dismissed the sons' claims. It was held that the 2015 Will should be admitted to Probate. The sons appealed that decision but at the second trial, Rita was again successful. The sons appealed again and in that appeal the sons were successful.

The Judge in the case held that whilst the sons were unsuccessful in proving the deceased had lacked testamentary capacity, and that there was no fraudulent calumny, the claim of undue influence was made. It was felt that the words of the Will were not the words of the deceased but that of Rita. The Judge further held that Rita had been an unreliable witness and had given untruthful evidence about the circumstances surrounding how the 2015 Will was made.

Rita then appealed to the Court of the Appeal and on appeal, the Court held unanimously that the claim of undue influence could not be made out. Undue influence relates to whether a third party coerced the deceased to such an extent into making a Will that the deceased would not have made had they have instructed of their own free will.

The Court commented, ‘there was a perfectly rational basis for giving the claimant the property, as she had lived there and looked after the deceased for six years, whereas the deceased considered that the defendants did not care for her and had abandoned her’.

It is clear from this case that in order for a claim of undue influence to be successful there must be strong evidence that the deceased was coerced to such a level that the resulting Will was not truly of the deceased’s making. Further, it highlights the importance of giving instructions alone independently of any potential beneficiaries.

How We Can Help

With the number of challenges on the validity of Wills on the rise, one way to mitigate such a challenge is to seek independent advice on the preparation of your Will. Our team of Wills and Estate Planning specialists based across Dorset are always on hand to advise on the preparation of your Will. Contact us on 01258459361, or visit our webpage for more information about our service.

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