Undue influence leads to an invalid will

In a rare example of a successful claim by the children and grandchildren of the late Mrs Jones, the court held that the testator’s will was invalid on the grounds of undue influence in the recent case of Jones & Ors V Jones.

 

Background

Daphne Jones passed away in hospital on 16 September 2021, aged 82.  Her death certificate recorded several causes of death including COVID-19, stroke, vascular dementia and heart failure.

Mrs Jones was survived by three of her four daughters, Ceri, Catherine & Jacky, another daughter, Vicky sadly having passed away on 2 February 2021. She also had 8 grandchildren and 7 great-grandchildren.

On 4 July 2021 Mrs Jones signed what purported to be her last will. She had not executed any previous wills. The will was witnessed by a neighbour, Pauline Evans (“Pauline”) and a chartered accountant, Neil Bevan (“Neil”) who had also typed up the document. It was a short document. It appointed one of her daughters, Ceri, as executor and left all “real and personal property whatsoever and wheresoever situated” after settlement of any liabilities to Ceri. Her estate consisted of her home (a two-storey terraced home in Port Talbot) and contents, a small amount in savings and personal effects.

 

Challenge to the will

Catherine, Jacky, and Vicky’s children sought to challenge Mrs Jones’ will on various grounds, including that it was the result of undue influence by Ceri over her mother. When Ceri failed to accept the invalidity of the will and other consequential proposals, they issued proceedings by way of a claim form dated 5 October 2022. Those proceedings were defended by Ceri, who continued to maintain that the will was valid. 

 

The preparation and execution of the will

The court had little evidence available to it regarding the surrounding circumstances of the execution of the will. Mrs Jones’ brother, Edwin, had told the court he had discussed arrangements for making a new will with his sister shortly after Vicky’s death. At this time, Mrs Jones seemed uncertain as to what to do with Vicky’s share in the property. Edwin suggested leaving it to all the grandchildren.  Subsequently, he arranged for a solicitor to visit her but in the end she did not proceed with instructions to that solicitor, telling Edwin that she was going to use someone else who Ceri had found, Ceri having moved in with her mother shortly after Vicky died.

The court did have before it a short statement from Pauline, which confirmed that Mrs Jones had asked her to witness her signature. However, the statement did not contain a statement of truth and Pauline was not called to give oral evidence at the trial. The judge therefore gave little weight, if any, to it.

Neil did give evidence. He stated that he became involved in May 2021. He met Pauline and Ceri at the same time as meeting Mrs Jones. He said Mrs Jones told him she was under pressure from Edwin to sign a will, but that she did not want to sign the will that he was recommending. He went on to say that she told him she wanted a will appointing Ceri as her executor and sole beneficiary. He confirmed that he arranged to type up the will for Mrs Jones, with her telling him what to say. After the will had been signed and witnessed, he said he put it in his briefcase and took it home where it remained until her death, when he then arranged to submit it to probate.

 

Witness evidence

The court heard evidence from various members of the family that following Vicky’s death and around the same time as the making of the will, tensions began to arise between Mrs Jones and Ceri on the one hand and other family members on the other. The witnesses gave various examples of how their relationship with Mrs Jones changed around this time, which included:

• It was becoming awkward to see Mrs Jones, and when they did, she would either look to Ceri for approval before she said anything or not speak at all and allow Ceri to speak instead.
• It was becoming more difficult to speak with Mrs Jones on the telephone with Ceri often saying she was sleeping or tired and on the rare occasions when they did speak, Mrs Jones was monosyllabic and/or sought permission from Ceri before doing so.
• Being made to feel unwelcome at the house.
• Hearing Ceri telling Mrs Jones that they had all fallen out with her and that they were visiting another relative instead.
• Ceri controlling what Mrs Jones was eating.
• Ceri starting arguments and shouting in front of Mrs Jones.

In addition, Ceri told various members of the family that Catherine had taken £3,000 of her mother’s money and Vicky £10,000 and that Vicky had taken her mother’s credit cards behind her back.

The court also had copies of text messages passing between Ceri and a family member wherein Ceri had stated she believed she would (and should) inherit Mrs Jones’ house despite her, and her siblings, having been told by Mrs Jones, prior to Vicky’s death, that she wanted to share her house between all four children. Catherine also gave similar evidence. Jacky told the court that she had spoken to her mother following Vicky’s death, and she had said that Vicky’s share in the house would now pass to her children.

Ceri admitted to the court that her mother’s contact with other family members had tailed off, but she said this is what her mother wanted. She also said that she started to discourage such contact to “protect” her mother. When asked why her mother wanted less contact she said that shortly before Vicky’s death her mother had told her “something was going on” and when she asked what, her mother replied saying she did not know. Eventually, however, she said her mother did tell her that she had loaned Vicky and Catherine a lot of money and had not had it back.

 

The law on undue influence

In Edwards V Edwards [2007] Lewison J, as he then was referred to, a summary of the law on undue influence as follows:

“i)           In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii)            whether undue influence has procured the execution of a will is therefore a question of fact;

iii)           the burden of proving it lies on the person who asserts it.  It is not enough to prove that the facts are consistent with the hypothesis of undue influence.  What must be shown is that the facts are inconsistent with any other hypothesis.  In the modern law this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

iv)           in this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud;

v)            coercion is pressure that overpowers the volition without convincing the testator’s judgment.  It is also to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate.  Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;

vi)           the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will.  The will of a weak and ill person may be more easily overborne than that of a hale and hearty one.  As was said in one case simply to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything.  A “drip drop” approach may be highly effective in sapping the will;

…..

ix)           the question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes.  The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”

 

Court’s assessment

The judge concluded that there was no direct evidence of undue influence in the case. He noted, however, that, as Mann J observed in Schrader v Schrader [2013] there rarely is. In his judgment, the facts inevitably pointed to a conclusion that Mrs Jones was coerced into making her will by Ceri.  The facts, he said, were inconsistent with any other conclusion.

Having considered the evidence, the judge concluded that prior to Vicky’s death, Ceri believed she sought to inherit her mother’s house but that it was Mrs Jones’ settled intention to leave it between her four daughters. He also held that Mrs Jones was devasted by Vicky’s death and likely still in the grieving process when she signed the will. He further considered that from the time Ceri moved in with her mother, she increasingly isolated her from other members of the family. By the time the will was signed, isolation was substantially complete, and Mrs Jones became dependant upon Ceri.  Lastly, he concluded that it was likely Ceri had repeated to her mother what she had said to other family members about Catherine taking their mother’s money and Vicky her credit cards.

The judge said, it may be that all Ceri thought she was doing was persuading her mother to do what she, Ceri, believed was the appropriate thing to do, but the combination of all the circumstances were such that the only conclusion is that what occurred went far beyond persuasion. 

In conclusion, the judge stated that he did not consider Ceri had been frank or open with the court as to how the will came about, and he expressed concern that it had been executed without any assistance from a solicitor or medical examination. In all the circumstances, he held that he was satisfied Mrs Jones had not signed her will as a free agent but because her volition had been overcome, without convincing her judgment, by the undue influence of Ceri.

 

Judgment

Accordingly, the court held that the will was invalid, and that Mrs Jones had therefore died intestate.  As such, her estate would be distributed in accordance with the statutory intestacy rules.

 

Conclusion

Whilst undue influence remains extremely difficult to prove because it is often not possible to provide direct evidence of undue influence, this case serves as a useful reminder that, whilst not direct, if the evidence is such as to point to a conclusion on the facts that are inconsistent with any other conclusion other than undue influence, the court will order that the will is invalid.

If you have or think you may have a case where undue influence has been exerted upon a loved one or someone else is alleging undue influence in relation to a will which you consider to be valid and wish to receive legal advice in relation to the same, please contact Ally Tow today in our firm’s Dispute Resolution group on 07894 512 991 or by email at [email protected].