‘It was reported that as many as 10,000 people are disputing wills every year’.

Article written by Peter Causton

Court of Appeal puts the brakes on undue influence claims.

Hardly a week goes by without news of another disappointed beneficiary challenging a will and generally failing and having to pay the other party’s costs.

Why so? The coronavirus pandemic which resulted in electronic execution of wills and the increased value of estates as well as the younger generation being unable to get on the housing ladder are some of the reasons for more people making claims. Divorce has also left many blended families and there are unfortunately often disputes between children of an earlier marriage and a step parent. People find it shocking and hard to accept if they are cut out of a parent’s will. People often move away from home and lose touch with their relatives whilst others stay closer and care for them. It is very easy for a person who is cut out of a will to point the finger of suspicion and blame at whoever has received a larger inheritance.

Last week the Guardian reported that thousands of families are becoming embroiled in inheritance disputes leading to a record volume of “ruinously expensive” court cases.

It was reported that as many as 10,000 people are disputing wills every year. In 2021-22, 195 disputes went in front of judges, up from 145 in 2017, but that many other cases are resolved before going to Court. This is not surprising as inheritance disputes are possibly the most stressful types of dispute pitting siblings against each other, closely followed by divorce and boundary disputes. Disputes are only likely to increase if the law is reformed to allow for electronic wills. Ironically there is less chance of a dispute if a person dies intestate as the estate is then shared out equally between close members of a family. If electronic wills are introduced, it may result in more wills being executed and therefore more partisan decisions about who inherits what.

I always advise clients to think very carefully before bringing such claims because they can be costly emotionally and financially. They often also attract press interest and no one likes their laundry washed in public and family disagreements about money appearing in the Daily Mail.

As Counsel I advise clients to obtain as much evidence as they can before launching any proceedings and of course there is the pre action protocol practice direction to follow. An early exchange of information about the Deceased’s health can be key when it comes to arguments over capacity. That is another area which is currently being looked at to see if the law should be changed in determining capacity.

Claims for undue influence have recently been made more difficult by the Court of Appeal which recently overturned a decision that had found that a daughter had exercised undue influence over her mother in executing a will which cut her brothers out of the estate.

 

The full case report in Rea v Rea & Ors [2024] EWCA Civ 169 (23 February 2024) can be found using the following link:
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2024/169.html

This case was headline news in the Daily Mail https://www.dailymail.co.uk/news/article-13122181/Devoted-daughter-WINS-brothers-mother-cutting-million-fortune.html

The decision makes it more difficult for disappointed beneficiaries to prove undue influence in such cases as there is now almost a presumption that there is no undue influence even if a beneficiary has persuaded a relative to change their will. The beneficiary has to act coercively, not just persuasively. The starting point is that undue influence is improbable. The Court of Appeal judges said that:

“The extent, if any, to which it is appropriate to have regard to inherent probabilities will thus be affected by the particular facts. Even so, it seems to me that it will commonly be appropriate to proceed on the basis that undue influence is inherently improbable. As I have said, “undue influence” signifies coercion in this context, and potential beneficiaries are surely less likely to resort to coercion than to rely on affection, gratitude or even persuasion.”

“I would accept that 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 case of Ms Rea involved a trial and then an appeal before a High Court judge, but then ended up in the Court of Appeal where the previous appeal decision was overturned. The case went to Court three times. Ms Rea feared being made homeless and bankrupt by the litigation, but that begs the question of how her three brothers can afford the enormous costs incurred (apparently £280,000) and which now may well fall to them to pay (as well as their own) or after the event litigation insurers.

This Court of Appeal decision is likely to result in fewer claims being brought as it highlights the difficulty in establishing undue influence which is one of the main bases for bringing a claim.

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