The Court of Appeal overrules the High Court decision on undue influence in Rea v Rea

Mrs Rea first executed a Will in 1986 ("the 1986 Will"), which left all her property to her children (Rita, Remo, Nino and David) and appointed Remo as her executor.

Mrs Rea suffered several health conditions up until her death on 26 July 2016, which resulted in Rita moving into Mrs Rea's property to become her principal carer.

In 2015, Mrs Rea instructed solicitors to draft the 2015 Will, which:

1. Left all her property solely to Rita;
2. Appointed Rita and Mrs Rea's niece as joint executors; and
3. Split the residue of her estate equally between her four children.

The contemporaneous note of the meeting indicated Rita was not only present but intervened throughout.

The mental capacity assessment confirmed that Mrs Rea was mentally capable, and there was no reason to believe that she was being coerced or under any undue influence.

Mrs Rea's three sons, Remo, Nino, and David ("the sons"), were not aware of the 2015 Will's existence.

The sons issued proceedings on 5 July 2017 for an order in favour of the 1986 Will.

A three-day trial at the England and Wales High Court ("the EWHC") concluded that the 2015 Will should be admitted to probate.

An appeal against this decision was dismissed in 2021; however, in 2022, a further appeal at the England and Wales Court of Appeal ("the EWCA") succeeded as the EWHC had made a mistake cross-examining Rita and the claim, therefore, needed to be remitted for a retrial.  

At the retrial, the EWHC held that:

1. Mrs Rea had the relevant testamentary capacity at the time the 2015 Will was executed;
2. Mrs Rea knew and approved the contents of the 2015 Will;
3. The case did not involve fraudulent calumny; and
4. Undue influence was found because Rita procured the making and execution of the 2015 Will.

The High Court Judge stated Mrs Rea's frailty, vulnerability, and dependency on Rita, Rita's forceful personality, the "major change" of the 2015 Will in comparison to the 1986 Will and the failure of Rita to disclose the existence of the 2015 Will were some of the reasons why he found undue influence to have been exercised. 

The High Court Judge attributed Rita's "failure to give a true explanation as to the circumstances in which the 2015 Will came to be made" to Rita having put "undue pressure upon her mother to change her 1986 Will so as to leave 5 Brenda Road" to her.

The EWHC decided against the 2015 Will and favoured the 1986 Will. After that, Rita appealed to the EWCA.

This case highlights a few important points.

It is notoriously hard to prove undue influence.

All litigation carries risk, but in these cases, a great deal depends on how the court perceives specific witnesses.

Undue influence claims can and do succeed—either at trial or by settlement—but they require solid evidence of coercion.

This case also shows that a person's reasoning behind making a Will and the discussions during the initial meetings can become relevant to establishing the Will's validity.

Such cases will likely continue to appear, particularly where family members make arrangements on behalf of an elderly relative creating a new Will and are involved in the process.

It is important for people making Wills to be aware of these issues and take proper advice, especially if provisions that have been in place for a long period of time are being altered significantly.