Brendan Cotter considers the difficulties that claimants continue to face when attempting to challenge testamentary predators and prove undue influence in probate matters
‘The question’s very much too wide, and much too deep, and much too hollow, and learned men on either side use arguments I cannot follow.’ Hilaire Belloc’s words in the 1910 ‘Dedicatory Ode’ could easily apply
to the question of alleging undue influence in probate matters.
In Butterworth’s Encyclopaedia of Forms and Precedents (5th edition, 2016 review), in precedent 222, there are particulars of claim to revoke a grant of probate alleging testamentary incapacity, lack
of knowledge and approval, and undue influence.
The scenario is the geriatric ward of a hospital where a 91-year-old patient diagnosed with senile dementia has become totally dependent on the ward sister for all his needs. She has persuaded him that none of his relatives visit, although his nephew does come weekly and can give numerous examples of his uncle’s defective memory.
Instructions for a will are given by the ward sister to a solicitor who does not see the patient at any stage. The sole beneficiary under the will is the ward sister’s husband: ‘a stranger in blood with no claim on the bounty of the testator’. She is sole executrix. Two nurses witness the will.
It seems a fairly straightforward sort of case on the face of it. However, consideration of the facts and the relevant law and practice suggest that the prospects of success are so remote that the next of kin should be advised to settle on the best terms achievable and at the earliest opportunity.
Question of capacity
The pleadings aver that ‘at the time when the… will purports to have been executed the deceased was not of sound mind, memory, or understanding’. But capacity tends to be presumed by due execution of the will, which is not being challenged here (see Tristram and Coote’s Probate Practice (35th edition, 2015)), and ‘the strongest evidence’ is required to rebut the presumption of due execution (see Sherrington v Sherrington  WTLR 587).
Capacity is not an absolute concept and senile patients can have good days and bad days. Theobald on Wills (18th edition, 2016) states: ‘It is perfectly possible for someone suffering from mild or even moderate dementia to make a valid will.’
The particulars state that the testator ‘frequently could not recall the names of any member of his family… he regularly scolded [the nephew] on his visits for not having visited him for years. He could not recall the profession he had practised for 50 years and had to be reminded that he owned a house by the sea.’
Williams on Wills (10th edition, 2014) states
that the memory is the ‘grand criterion’ for the state of mind. But here the nephew’s weekly
visits probably lasted no more than an hour
while the ward sister was there permanently in her professional capacity, able to chaperone and give a different version of events. She would have her nursing notes to refer to, while the nephew would probably be relying on his own memory.
The evidential rather than substantive rule of knowledge and approval is satisfied by proof of testamentary capacity and due execution (see Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (20th edition, 2015)).
The pleadings aver that ‘the will was neither read over to the deceased, nor were the contents explained to him’. But there is no evidence to support this and the allegation seems to be a ‘flyer’ floated in the hope that the nurses will admit it or volunteer some irregularity in execution such as a ‘guided hand’ signature (as
in Barrett v Bem  EWCA Civ 52). In any event, there is no strict requirement that the will must
be read over; it is just one of the ways of showing knowledge and approval (see Theobald and Sherrington).High burden of proof
Undue influence tends to take place in secret,
and with the key witness dead, it is a question of looking at what is left on the beach when the tide has gone out. How, for example, can the next of
kin now prove the fraudulent calumny that the ward sister persuaded the deceased that none
of his relatives visited him? Apart from the fact
that fraud has not been specifically pleaded here
– practice direction 16.8.2(1) of the Civil Procedure Rules says it must – counsel at the Chancery Bar are not likely to be impressed by anything short of a written admission from the nurse.
The particulars aver that the defendant made use of the deceased’s complete dependence on her to force him to execute his will. But, as counsel would say, ‘and where is the evidence to support that sweeping statement?’ The court can draw inferences from the known facts but suspicion
and guesswork are not good enough.
When it comes to credibility, the defendant
can present herself as a well-respected, highly professional, senior palliative nurse – dedicated, caring, good in a crisis, and always willing to go the extra mile for the patient, especially the vulnerable – who on one of the patient’s good days was simply relaying his clear instructions to a solicitor.
In Craig v Lamoureux  AC 349, in the Privy Council on appeal from the Supreme Court of Canada, Viscount Haldane said in a much-quoted passage, ‘it is not sufficient to show… circumstances… consistent with the hypothesis of… undue influence. It must be shown that
they are inconsistent with a contrary hypothesis.’ The courts explain this as simply a high burden
of proof, even on the civil standard requiring ‘compelling evidence’ (see Edwards v Edwards  WTLR 1387 per Mr Justice Lewison at paragraph 47(iii)).
However, it seems to be something approaching the ‘mysterious third standard’ of proof beyond all doubt, illustrated by the meagre handful of undue influence cases which have ever been successful.
In most of the leading cases, the court found no evidence of undue influence, something which
is not immediately apparent in the standard practitioners’ textbooks. Traditionally, claimants shy away from alleging undue influence for fear
of a costs penalty if they fail – as they usually do.
Historically, when presented with a valid-looking will allegedly procured by undue influence, the courts have preferred to look
to the principle of testamentary freedom and matters of form, rather than the vulnerability
of the testator and inequalities in relationships with those around them.
In Hubbard v Scott  EWHC 2750, it was said that there might be some argument for a higher court to remove the distinction with
gifts inter vivos and find a presumption of
undue influence with wills.
Interestingly, in British Columbia, from
1 April 2014, under section 52 of the Wills,
Estates and Succession Act, where there is potential for domination or dependence, the person propounding a will has the burden of disproving an allegation of undue influence.
Brendan Cotter is a former principal solicitor for Surrey County Council