A reminder that persuasion does not amount to undue influence and a solicitor's file note can be crucial

In a recent dispute between sisters over their mother's last will  (Coles v Reynolds & Anor ECHW 2151  (Ch)) the court held that the deceased i) had knowledge and approval of her will; and ii) was not unduly influenced into favouring one daughter over the other.

The deceased had made a will on 23 May 2012 (“the Will”), naming one of her daughters as sole beneficiary and executor ('the Defendant'). This was a change from her previous will which had left her estate equally between her two daughters. The excluded daughter ('the Claimant') bought a two-part claim seeking:

1. an order revoking the Grant of Probate made to the Defendant on the basis that the Defendant had unduly influenced the Deceased into making the disputed will and/or she neither knew nor approved the contents of the Will; and
2. a derivative claim on behalf of the estate to set aside an assignment of one half share of the beneficial interest in the deceased's property to the Defendant as it was procured by undue influence and accounts for rents received by the Defendant.

Knowledge and approval When considering whether the deceased lacked want of knowledge and approval the judgment serves as a useful reminder of the leading cases in this area.  Reference was made to Peter Gibson LJ in Fuller v Strum [2001] EWCA Civ 1879 [33] who said: “ [I]n a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that it represents the wishes of the deceased.” The Claimant was not challenging lack of testamentary capacity nor was it claimed that the Will was not executed correctly.  As such, the burden lay with the Defendant as propounder of the Will, to show the deceased knew and approved its contents. The court did not accept the Claimant's argument that the “suspicious circumstances” in question were the Defendant's involvement in the Will preparation, which was a significant departure from the previous will but found that the solicitor's note which said “She [the Deceased] was adamant she did not want [the Claimant] to inherit as she had done nothing for her mother and no longer wants to see her, she said her daughter [the Defendant] does everything for her” clearly explained the reason for the change of wishes. The Deceased also signed a statement, contemporaneously when signing her Will, and in the absence of the Defendant, confirming the same. The Court concluded it could have relied on the presumption arising from testamentary capacity and due execution alone. However the solicitor's attendance notes demonstrated the deceased knew exactly what she was doing, and that she knew and approved of the contents of the Will she executed. This head of challenge therefore failed. Undue influence The Claimant argued there was “strong circumstantial evidence” to show that the Defendant had placed undue influence on the Deceased when her Will was made, including that fact that she was a frail and vulnerable elderly lady; she was heavily reliant on the Defendant and the fact that the Defendant had persuaded the Deceased not to make a pecuniary legacy to her grandchildren, despite the Deceased's wish to do so. The court dismissed all of the Claimant's arguments. The reasoning included that there had been no concerns regarding the Defendant's mental capacity. Equally, neither vulnerability nor frailty prevented someone from making a valid Will. The Court agreed that whilst the Deceased did rely on the Defendant, she had other help too. Whilst at her solicitors' appointment, the deceased discussed her wish to leave the Claimant's children a legacy in her Will. The Defendant reminded her that the only way to achieve this would be to sell her house, which she did not wish to do. While the Court agreed that the Defendant persuaded the deceased not to make a legacy, but persuasion did not equate to undue influence. The Court concluded that the Claimant's allegation of undue influence was not made out. Given the breakdown in testamentary relations between the Claimant and the deceased, the change in the deceased's testamentary wishes was quite understandable. Whilst the Claimant was not happy with the outcome, it did not mean that there must have been undue influence. Derivative claim Having been unsuccessful on the first part of her claim, it was not open to the Claimant to pursue a derivative claim on behalf of the deceased's estate. The whole of the Claimant's claim therefore was unsuccessful. The full judgment can be accessed here. If you have any questions or require advice please don't hesitate to contact Sally Goodger in the Wills, Trusts and Inheritance Disputes team.