Coercion on the Person Making the Will

When you suspect the testator has been Coerced into making a will, against his or her wishes.

We are often approached for advice in connection with what is best known as ‘Coercion’ of a will, whereby a family or family members feel that the person who has written the will (testator) has been coerced.

In essence the coercion against the testator has to be real rather than imaginary. Often families seek our advice, because they do not like, or are not aware of changes in the will, and it is not expected in particular where they are to receive a benefit from the will.

A change of heart by the testator is not coercion.

We have recently had a case considered in the High Court which has clarified and updated the way the Courts will view such matters.

If there is a suggestion of coercion then the will can be challenged, but that challenge is done through the Court system, and there are various procedures and rules to follow.

In a recent case ‘Rea v Rea & Ors’ the position of coercion was considered.

This case concerned an inheritance dispute between four siblings over the validity of their late mother’s will. Their mother, Mrs Rear made a will in December 2015, leaving her home which was the main asset of her estate to her daughter Rita. This differed greatly from Mrs Rea’s 1986 will, in which she left her estate equally between her four children.

Unusually Mrs Rea included a clause in her will, making it very clear why she had chosen to make the provision for her sons. This is an unusual approach, as these types of statements are usually made in a private letter of wishes, which is composed outside of the will, but for obvious reasons left with the will to be considered at the time of death.

The clause headed ‘Declaration’ within the will read: I DECLARE that my sons do not help with my care, and there has been numerous calls from me, but they are not engaging with any help or assistance. My sons have not taken care of me, and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate, I wish my executors to defend any such claim, as they are not dependent upon me, and I do not wish them to share in my estate, save what I have stated in this will’.

As can be imagined at the heart of this dispute, was the sons minimal contact with their mother in the later years of her life. Apparently, Mrs Rea had lived with her daughter Rita, and a friend who helped with her care. By 2015 Mrs Rea needed an increased level of care, and Rita and two of her sons, Nino and David drew up a rota to take some of the burden off Rita. Her other son Remo was not included in the rota, as he was living in the United States until 2015, and on his return to the UK seemed to have little involvement with his mother.

Regrettably after only a few weeks, the above arrangement broke down and Rita returned to being Mrs Rea’s main carer, until her death in July 2016, aged 85.

Rita, who was the claimant, sort to establish the 2015 will, and have it entered into probate, in what is known as ‘Solemn Form’.

The brother sort to defend the claim, and denied the validity of the 2015 will, counter claiming for the 1986 will to be entered into probate.

The grounds for challenging the 2015 were:

  1. Lack of testamentary capacity
  2. Lack of knowledge and approval
  3. The 2015 will was procured by Rita, subject to Mrs Rea to undue influence
  4. The 2015 will was procured by fraudulent calumny by Rita on her mother

What is the law in such cases?

In this matter, the lack of testamentary capacity claim was dropped in the early stages by her sons.

A testator must know and approve of the contents of their will, to have any testamentary affect.

The Court ultimately decided that Mrs Rea did know and approve of the contents of her will. Evidence from the solicitor who prepared the will, and the GP who assessed Mrs Rea’s capacity at the solicitor’s bequest, clearly demonstrated this. The defendants have claimed that Mrs Rea was a simple woman, with no mind of her own, and limited ability in the English language.

The deputy of master hearing the case, instead found that this was not true, and that although her first language was Italian, she was perfectly capable of understanding English, so long as the speaker used simple language and spoke slowly.

The defendants next claim was one of undue influence. They sort to establish that the will was invalid, as it had been procured as a result of Rita exerting undue influence over Mrs Rea, to induce her to write her will in Rita’s favour.

The law of undue influence, as it applies to wills, has a core case of ‘Re Edwards’ (2007):

In essence, this case decided;

  1. There is no presumption of undue influence, unlike with lifetime gifts where there are certain relationships where influence is presumed.
  2. Whether there has been undue influence is a question of fact.
  3. It is up to the person claiming undue influence to prove this is the case. The claimant must prove that there is no other explanation, so this is a very high burden on the person claiming undue influence to overcome.
  4. For there to be undue influence, the coercion or fraud that has brought about the will, must have actually overborn the wishes of the testator.
  5. It is not undue influence if the testator’s judgment is changed, it must be more than mere persuasion.
  6. The physical and mental state of the testator are relevant factors, in determining how much pressure is necessary to over bare their will.
  7. A claim that the testator’s mind has been poisoned against a person who would be a natural beneficiary, falls under a separate heading of ‘Fraudulent Calumny’.
  8. When determining whether someone has made their will under undue influence, it is not a question of whether the will is ‘fare’, but whether the testator has acted as a free agent.

In the ‘Rea v Rea’ case, the defendants submitted to the Court, they attempted to paint a picture of Rita as an ‘angry, violent vindictive woman. They also raised her mental health problems, which she had suffered from thirty years before. The Court did not accept that this was undue influence. There was no actual evidence that Rita had exerted any pressure, or coercion upon her mother into writing her 2015 will.

In this case there was strong evidence from the solicitor, and GP that lead the Court to conclude that Mrs Rea had made the new will of her volition. The gift of the property to Rita, also made clear her intention, and stated ‘because she has taken care of me all these years’.

The defendants sort a claim under the heading of ‘Fraudulent Calumny’. This is the making of false and defamatory statements, about someone to damage their reputation. In this case they sort to establish that Rita had poisoned Mrs Rea’s mind against her sons by making such statements. It was found that there was no evidence that she (the daughter) had done so, and their case was based on Rita’s supposed ‘bad character’.

In this case the defendants claim filed, and the 2015 will was declared to be valid.

This case is the most recent case in connection with these points, and really cements what the general rule was behind, but gives an authority in such arguments.

In reading the judgment, a couple of matters should be considered, in that the judge indicated ‘it is not my task to decide whether the 2015 will was justified or fare. I am only required to decide if it is valid. Undue influence claims are questions of fact, while in this case the brother’s felt that they had been unfairly left out, the claim they pursued required a high burden of proof, and ultimately had no evidence of coercion outside of their own feelings, about their sisters character’.

It is also important in this case that both the solicitor making the will, and the GP making notes on the testator’s mental condition, assisted the Court in making the judgment.