Schomberg & Ors v Taylor & Ors

In a testamentary undue-influence claim, there is no presumption of undue influence. The person alleging it bears the burden of proof. The court must determine whether the testator’s free will was overborne by coercion or fraud. Mere persuasion, appeals to affection or pity, and legitimate influence are insufficient.

Where the allegation is serious, the evidence must be sufficiently cogent to satisfy the court, on the balance of probabilities, that coercion is the better explanation. The court may draw inferences from the circumstances, including the testator’s physical and mental condition, persistent pressure, the effect of that pressure, and whether the resulting disposition accords with the testator’s established wishes.

The claimants, named executors of a will dated 18 December 2008, sought its admission to probate in solemn form. The first and second defendants counterclaimed for probate of an earlier will dated 8 November 2005.

The defendants alleged that the 2008 will had been procured by the undue influence of the deceased’s brother-in-law. They relied on her physical and emotional frailty after her husband’s death, persistent pressure concerning the contents of her will, the appointment of an associate of the alleged influencer as executor, and the substantial departure from her previous testamentary arrangements.

The central issue was whether the 2008 will represented the deceased’s free decision or resulted from coercion which overbore her volition without convincing her judgment.

1. Undue influence. The court applied the principles summarised in Edwards v Edwards [2007] WTLR 1387 and qualified by Cowderoy v Cranfield [2011] WTLR 1699. There is no presumption of undue influence in relation to a testamentary disposition. The burden rests on the party alleging it. Undue influence means coercion which overbears the testator’s volition without convincing the testator’s judgment, or fraud.
2. The court was not required to conclude that undue influence was the only possible explanation. Nevertheless, because the allegation was serious and inherently improbable, the evidence had to be sufficiently cogent to establish, on the balance of probabilities, that the testator’s will had been overborne by coercion rather than that another explanation accounted for the disposition.
3. The relevant circumstances included the deceased’s physical and mental frailty, the persistent and unwanted pressure applied to her, the evidence that the pressure wore her down, the substantial departure from earlier wills, the implausibility of the explanation given for excluding the previous beneficiaries, and the absence of a close relationship with the new principal beneficiaries. The court could draw the necessary inference from the evidence as a whole, without proof of one decisive conversation.
4. The evidence established that the deceased had been persistently pressured after her husband’s death and was driven to make the 2008 will to obtain peace rather than because it reflected her true wishes. Her condition, the nature of the pressure, the changed dispositions, the involvement of the new executor, and the alleged influencer’s financial motive collectively provided cogent evidence of coercion.
5. The undue-influence claim was made out. The court proposed to pronounce against the 2008 will. Further submissions were required concerning the evidence necessary before making the appropriate declaration in favour of the 2005 will.