Friday, 1st March 2024

Significant departures to a longstanding Will

As our society ages, there are growing incidences of individuals making significant changes to their Wills later in life. English succession laws have a proud tradition of testamentary freedom, but it is important to recognise that late-in-life amendments can have consequences.

The recent case of Rea v Rea (2023) EQHC 1901 (Ch) highlights the difficulties with challenging a Will, and the importance of regularly reviewing your Will.

What happened?

Mrs Rea (deceased) had one daughter and three sons. She made a Will with a solicitor in 1986 appointing one son as sole executor and left her estate in four equal shares to her four children. She made no subsequent Will or Codicil since 1986 – for almost thirty years.

In 2015 Mrs Rea had a solicitor prepare a new Will. She wanted to ensure her home went to her daughter, feeling that her sons did not care for her and had abandoned her. At the time Mrs Rhea had several physical health issues.

The solicitor arranged a capacity assessment – a sensible precaution, given Mrs Rea’s age and health, and the departure in her instructions – with Mrs Rea’s GP who confirmed capacity. They made no suggestion of undue influence.

The Will was witnessed by the solicitor and GP.

After Mrs Rea’s death in 2019, her sons challenged the validity of the 2015 Will on grounds including lack of testamentary capacity and undue influence. The Court concluded the Will was valid.

After several attempts the sons appealed in 2022, and were successful due to a procedural error the judge had made when conducting the trial.  A re-trial was heard in July 2023.

The judge ruled that Mrs Rea did have capacity to make her 2015 Will. However, the judge decided after reviewing the evidence that despite having a solicitor draft the Will and the GP conducting a capacity assessment, there was undue influence by her daughter. The judge determined that due to Mrs Rea’s age and vulnerability, dependence on her daughter, the fact that her daughter had made the arrangements for her mother to make the 2015 Will and that the new Will was unbeknownst to the sons until after their mother had died, Mrs Rea had been coerced to make the new Will.

Mrs Rea’s daughter appealed the decision with the Court of Appeal, and on 23 February 2024, Lord Justices Moylan, Newey and Arnold unanimously ruled in her favour.  They determined that the ruling in 2023 had been wrong; the dependency Mrs Rea had on her daughter should not determine that there was undue influence.

What does this mean?

This case illustrates several important lessons:

• When considering making major changes to a Will, there may be greater scrutiny placed on the circumstances of the new Will if a long period of time has elapsed.
• Although testamentary freedom forms the basis of English succession law, we know that people often have an expectation of inheritance. Where changes are being made that show preference to a family member (which is not unusual where significant care is being provided), it is important to try and explain the reasoning to all family members in a non-confrontational manner. We wonder whether the shock discovery of the new Will by Mrs Rea’s sons contributed to their determination to have it disregarded.
• Where a Will is amended to benefit a person on whom the testator depends, that dependency should not give rise to a presumption of undue influence. It has long been a principle of the Court that undue influence must be proved by the persons alleging it.

The full case judgement can be found here.

For further advice, please contact James McLean, Alex Shah or Shirin Wright in our private client team.

This article is for general purpose and guidance only and does not constitute legal advice.  It should not replace legal advice tailored to your specific circumstances.