Rita Rea v Remo Rea & Ors

Testamentary undue influence requires coercion which overbears the testator’s volition. Persuasion, encouragement, appeals to affection or gratitude, and even pressure which influences the testator’s judgment remain lawful unless the testator is driven to make a will which does not express their wishes.

The allegation must be proved on the balance of probabilities. Although direct evidence is unnecessary, coercion must be more probable than every competing hypothesis. It is commonly appropriate to recognise its inherent improbability. Evidence showing only opportunity, dependency, motive, persuasion or suspicious circumstances will not suffice where an equally probable innocent explanation remains.

An 85-year-old testatrix made a will giving her house to the daughter who had lived with and cared for her for six years. The residue was divided equally among her four children. A solicitor prepared the will, and the testatrix’s GP assessed her capacity. Both professionals found her wishes clear and saw no evidence of coercion.

After a retrial, the High Court held that the will was invalid because the daughter had exercised undue influence: [2023] EWHC 1901 (Ch). The daughter appealed, contending that the finding lacked an evidential foundation and was outside the pleaded case. The central substantive issue was whether the evidence was capable of establishing testamentary coercion on the balance of probabilities.

1. Appeal allowed. The evidence was incapable of supporting the finding that the daughter had exercised undue influence. The 2015 will was admitted to probate in solemn form, and the sons’ counterclaim was dismissed.
2. Testamentary undue influence means coercion. The testator’s volition must be overborne so that the will records another person’s wishes rather than the testator’s own. Persuasion, encouragement, gratitude for care and appeals to affection remain lawful even if they affect the testator’s judgment.
3. The person alleging undue influence bears the burden of proof on the balance of probabilities. Direct evidence is unnecessary because coercion often occurs in private. Nevertheless, coercion must be more probable than any competing hypothesis. It need not be the only logically possible explanation, but an equally likely explanation defeats the allegation. Depending on the circumstances, it will commonly be appropriate to recognise that testamentary coercion is inherently improbable.
4. The trial judge’s individual factors did not establish coercion, whether considered separately or together. Physical frailty and dependency could create an opportunity for influence but did not show that influence was exercised. A forceful personality, a motive to obtain the house, involvement in arranging the solicitor’s appointment, non-disclosure of the will and unreliable evidence were each consistent with lawful persuasion. The testatrix also had a rational reason to benefit the daughter who had provided sustained care.
5. The trial judge had not given sufficient weight to reliable professional and independent evidence. The testatrix had capacity, knew and approved the will, consistently expressed her wishes when the daughter was absent, rejected the daughter’s suggestions and revised her instructions independently. Her solicitor and GP detected no coercion, while a co-resident described her as strong-minded and not easily overborne.
6. Although appellate courts exercise restraint over factual and evaluative findings, intervention was justified because the conclusion could not reasonably be supported by the evidence. The circumstances were at least as consistent with an independent decision or lawful encouragement as with coercion. It was therefore unnecessary to determine the separate pleading ground.

1. Court of Appeal (Civil Division): By [2024] EWCA Civ 169, unanimously allowed the appeal, admitted the 2015 will to probate in solemn form and dismissed the counterclaim.
2. High Court: By [2023] EWHC 1901 (Ch), HHJ Hodge KC held following a retrial that the 2015 will was invalid for undue influence and pronounced in favour of the 1986 will.
3. Court of Appeal: By [2022] EWCA Civ 195, allowed a previous appeal because restrictions on cross-examination had caused serious prejudice, and remitted the proceedings for retrial.
4. High Court: By [2021] EWHC 893 (Ch), dismissed an appeal from the Deputy Master.
5. High Court: By [2019] EWHC 2434 (Ch), Deputy Master Arkush admitted the 2015 will to probate and dismissed the counterclaim.