Rita Rea v Remo Rea & Ors

In a contested probate claim, the propounder must establish testamentary capacity and knowledge and approval. A duly executed will prepared and explained by an experienced solicitor, supported by medical evidence, is important but not conclusive.

Probate undue influence requires proof that the testator’s volition was overborne by coercion. It may be established by circumstantial evidence, but the facts must be inconsistent with any explanation other than undue influence. Professional involvement will not necessarily dispel influence if the circumstances show that the testator remained subject to improper pressure. Fraudulent calumny is distinct: it requires dishonest aspersions known to be false, or recklessly made.

The claimant sought probate in solemn form of her mother Anna Rea’s 2015 Will. The defendants, Anna’s three sons, sought an order pronouncing against that will and admitting an earlier 1986 Will to probate.

The 2015 Will gave Anna’s home principally to her daughter and divided the residue equally among the four children. It was challenged on grounds of lack of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny.

The claim was retried after the Court of Appeal allowed an appeal against the original trial decisions and ordered a new trial: [2022] EWCA Civ 195. The central issues were whether Anna validly made and approved the 2015 Will and whether it resulted from coercion by her daughter.

1. Capacity. The claimant proved that Anna understood the nature and effects of making the 2015 Will, the extent of her property, and the claims of her children and grandchildren. The incomplete medical assessment form was a defect of form rather than substance. The assessment was directed to testamentary capacity under the test in Banks v Goodfellow (1870) LR 5 QB 549, and the evidence of the solicitor and doctor was accepted.
2. Knowledge and approval. Anna knew and approved the contents of the will. The holistic approach in Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 was applied. Proper execution, reading and explanation of the will were highly significant, but were not legally conclusive.
3. Undue influence. The burden rested on the defendants. Probate undue influence is distinct from equitable undue influence in lifetime transactions and requires proof of coercion which overpowered Anna’s volition without convincing her judgment. The court could draw inferences from circumstantial evidence, but the facts had to be inconsistent with any other hypothesis.
4. The court relied cumulatively on Anna’s frailty and dependence, Rita’s forceful personality, the timing and secrecy of the changed will, the implausibility of Rita’s account, the substantial change from the 1986 Will, the terms of clause 11, Rita’s financial motive and the failure of the solicitor and doctor effectively to exclude pressure. Their involvement did not dispel the influence.
5. The case was one of coercive undue influence, not fraudulent calumny. Rita genuinely believed that two brothers had abandoned care of Anna, so the necessary dishonest state of mind was absent.
6. The court pronounced against the 2015 Will and in favour of the 1986 Will in solemn form. The existing grant of probate of the 2015 Will was revoked.

1. Court of Appeal: The appeal was allowed and a retrial ordered: [2022] EWCA Civ 195.
2. High Court: The original trial admitted the 2015 Will to probate and dismissed the counterclaim: [2019] EWHC 2434 (Ch).
3. High Court: The first appeal was dismissed, although procedural unfairness was identified: [2021] EWHC 893 (Ch).