Henein v Laffa

In probate, undue influence is distinct from the doctrine applying to lifetime transactions. There is no presumption of undue influence in relation to a will. The person alleging it must prove coercion. A renewed application for permission to appeal will be refused where, having regard to the trial judge’s directions, factual findings and conclusions, there is no realistic prospect that a full appeal would succeed. An appellate court will not grant permission merely to enable a disappointed party to reargue factual issues already carefully considered at trial, particularly where a further hearing would generate additional costs and false hope.

The applicant challenged the validity of his deceased wife’s will, which left her estate to her son. The County Court upheld the will, finding testamentary capacity, due execution, knowledge and approval, and rejecting undue influence. It also held that notice had validly severed the joint tenancy in the matrimonial home and ordered the applicant to pay the respondent’s costs.

Lewison LJ refused permission to appeal on the papers. The applicant renewed his application, raising alleged unfairness, the absence of reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, authorities concerning undue influence in lifetime transactions, and challenges to the factual findings. The central issue was whether there was a realistic prospect of a successful appeal.

1. Renewed application refused. The court adopted the detailed reasons given by Lewison LJ and refused permission to appeal.
2. In probate, undue influence is legally distinct from undue influence in lifetime transactions. A will gives rise to no presumption of undue influence. The person asserting undue influence must prove coercion. Authorities concerning lifetime transactions were therefore irrelevant to the allegation made in this case.
3. The trial judge had correctly identified the issues and directed herself on the burdens of proof. It was for the person propounding the will to establish testamentary capacity, due execution, and knowledge and approval. The applicant bore the burden of establishing undue influence.
4. The trial judge’s findings were open to her on the evidence. She was entitled to conclude that the deceased had testamentary capacity despite serious illness, that the will was duly executed, that she knew and approved its contents, and that undue influence had not been proved. The same applied to the finding that the joint tenancy had been validly severed.
5. The applicant’s proposed challenge substantially sought to reargue factual matters, alleged misconduct by the respondent, and criticism of the solicitor’s work. Those matters had been examined in the careful first-instance judgment and disclosed no realistic prospect of success.
6. No application for reasonable financial provision had been made at trial. The court therefore had no basis to treat the absence of such provision as an appealable error. Granting permission would expose the applicant to further costs without a realistic prospect of a different outcome.

• County Court sitting in Central London: upheld the validity of the will, rejected the allegation of undue influence, held that the notice severing the joint tenancy was valid, and ordered the applicant to pay costs.
• Court of Appeal (Civil Division): Lewison LJ refused permission to appeal on the papers. On renewal, the Court of Appeal adopted his reasons and refused permission.