The recent cases of Hubbard, Cowderoy and Wharton have all highlighted the difficulty in challenging a will based upon the allegation of undue influence. From an analysis of these cases it is clear that suspicious circumstances alone are not enough and a claim of undue influence will require strong evidence that actual coercion took place.
Sir JP Wilde initially defined undue influence in Hall v Hall (1868) LR 1P and D 481, 482 as being: “Pressure whatever character... if so exercised as to overpower the volition without convincing the judgment.” Sir James Hannen further defined undue influence in the context of probate in Wingrove v Wingrove (1885) 11 PD 81, 82 as: “To be undue influence in the eye of the law there must be – to sum it up in one word – coercion.”
Drip feed
Coercion may take several different formats. It can cover physical violence, verbal bullying or “simply talking to a sick person who is seriously ill in such a way that that person may be induced, for quietness sake, to do anything”. In Edwards v Edwards [2007] WTLR 1387, the testatrix was deliberately told incorrect information by one of her children in order to secure an inheritance, which amounted to undue influence, i.e. deliberate poisoning of a person’s mind. The key question to be determined is whether the conduct is such that it overpowers the will of the testator.
The amount of influence required to induce a person of weak mind and in ill health to make a will may be considerably less than that necessary to induce a person of strong mind and in good health. A ‘drip-drip’ approach may be highly effective in sapping the will.
While a presumption of undue influence may apply to lifetime transactions (Royal Bank of Scotland plc v Etridge [2002] 2 A C 773), no such presumption applies to wills. Whether a will has been procured by coercion may in certain circumstances be inferred from the facts of the case. However, this will only occur if there is no other possible explanation for the will (Edwards v Edwards [2007] WTLR 1387). The cases of Hubbard, Cowderoy and Wharton illustrate the very real difficulty facing a claim to set aside a will on the grounds of undue influence.
High hurdles
The three cases confirm that even though there may be suspicious circumstances surrounding the making of a will, claimants and solicitors should be extremely cautious before proceeding with a claim for undue influence as the hurdles remain high. Examples of where a claim for undue influence in probate actions have been successful are few and far between. Coercion must be established and this is a matter of fact in each case.
While an inference of undue influence may be drawn, if there is another hypothesis, such a claim ?will not succeed. The requisite standard is proof on the balance of probabilities, but, as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court.
It is easier to list examples which do not amount to undue influence than those that do. In addition to the three cases covered here, there are numerous cases that detail questionable conduct which does not amount to coercion. These include appeals to family ties or affection: “I am your only son”; “I am your best friend”; “Remember all the things I have done for you”; and “I’ll end up on the scrap heap.” Providing the testator’s will is not over-borne, strong persuasion and heavy family pressures, deliberate concealment and weedling one’s way into the affections of a vulnerable testator also do not amount to coercion.
There will only be undue influence if the following question is answered in the affirmative. If the testator were alive would he say: “This is not my wish ?but I must do it?” Coercion often takes place behind closed doors and the question to be addressed is whether the doctrine of ‘presumed undue influence’ should also apply to probate actions. ?As the law stands, there is a real risk that estates are being distributed against a testator’s wishes.
Case study one: Hubbard
In Hubbard and another v Scott and others [2011] ?EWHC 2750, HHJ Proudman confirmed that he could ?“well understand how the suspicions of the claimants ?were aroused”, but did not find undue influence ?had occurred.
The testator made his first will on 25 November 1997, leaving the whole of his net estate to a friend and neighbour, Dorothy Emblem, providing she survived him by 30 days. In default, the net estate was left to his two children. Dorothy died in about 2008 and, subsequently, ?on 5 November 2009, the testator, aged 87, made a new ?will, executing it in the presence of a solicitor, leaving his ?net estate to his cleaner, Mrs Kruk.
The two daughters alleged that Mrs Kruk and the testator met for the first time only some two and a half months before his death and that she was only ever his cleaner. It was also their position that there was no reason why their father would have left his net estate to the cleaner and not to family members.
The daughters placed great reliance on Mrs Kruk’s conduct after the death as she concealed from his friends the fact of his death and the place and time of his funeral. In the daughters’ opinion, Mrs Kruk, who came from a poor background, was only ever interested in the testator’s money and not in him personally.
The judge accepted that Mrs Kruk was less interested in the testator after his death. It was evident that Mrs Kruk was fond of the testator and described him as being “a good man”, however this was the limit of her affection.
While the judge found the circumstances may have been suspicious, the facts did not amount to undue influence. There was no evidence that Mrs Kruk’s conduct overbore the testator’s will as to induce him to make a will against his wishes. Based upon the case of Edwards v Edwards [2007] WTLR 1387 and whether another hypothesis existed, HJ Proudman concluded that as the testator was elderly and lonely and, due to his daughters visiting him infrequently, it was simply a case that the testator had no one else to whom he wanted to leave ?his estate.
Case study two: Cowderoy
In Cowderoy v Cranfield [2011] GWHL 1616 (Ch) the testatrix died leaving a will dated 13 November 2006 naming a ‘friend’, Mr Cranfield, as her sole executor and sole beneficiary. The granddaughter, Mrs Cowderoy, challenged the validity of the will, one of the grounds being undue influence.
The initial meeting at the testatrix’s home to obtain instructions was attended by two solicitors from Birkett Long, the testatrix and Mr Cranfield. A detailed attendance note of that meeting was prepared and was an intrinsic element of the evidence available. It noted that the testatrix “seemed unsure” as to how many grandchildren she had and that she “looked to Mr Cranfield for confirmation”.
Mr Cranfield was standing behind the solicitors who were seated on a sofa and the testatrix “kept looking over to him”. At times during the meeting she seemed “unsure”. When she was asked who she wished to appoint as executor and who she would like her money to go to she simply pointed towards Mr Cranfield, saying “him”.
It was noted that she “did not seem sure of what she wanted, or in fact what she had got. We [sic] did not feel that clear instructions had been given, nor that she fully understood the extent of her estate.” The testatrix only referred to Mr Cranfield on one occasion by name and she actually called him Ken, which was not his name. At the end of the note it stated “she seemed to forget what we had discussed earlier in the conversation and asked some of the same questions again”.
The solicitors clearly recognised the potential for undue influence by Mr Cranfield. They discussed the matter with their supervisor and it was agreed that a doctor should ideally be present on the next occasion. The testatrix subsequently spoke to the solicitor and confirmed that she did not wish to see a doctor and wanted to withdraw her instructions. It was noted that she “had great difficulty in getting her words out”.
The solicitor noted that she thought she could hear Mr Cranfield speaking in the background. Later that day Mr Cranfield telephoned the solicitor and stated that he had just arrived at the testatrix’s home and that she had told him that she did not wish to proceed with making her will.
The following day the solicitor contacted the testatrix again by telephone to confirm why the testatrix had decided not to go ahead. The testatrix stated that it was because the solicitor “was not her solicitor” and that she had her own solicitors whom she would be instructing.
The next day she raised the subject of her will with Mr Cranfield a further time. He found a different solicitor within the Yellow Pages whom he contacted and requested that they prepare a will for the deceased. An appointment was arranged.
Around the time that the will was executed concerns ?had been raised that the testatrix appeared on occasions to be “confused”. A legal executive wrote about the testatrix: “I am therefore concerned that she may be taken advantage of in her confused state.” There was a suggestion that the testatrix was consuming a cocktail of medication and alcohol and that she was “generally inebriated” after 11am most days. It was noted that the effect of the drugs that she was taking could be that “she could become disorientated, confused or have a lack of concentration” and it was noted that these effects would be enhanced if she drank alcohol.
Despite these suspicious circumstances it was found ?that the will was valid. The judge remained of the view that she had made her decision of her own free will and that there was “no arguable case” of undue influence. ?He noted that there was no evidence of Mr Cranfield trying to persuade or otherwise influence the deceased to make a will in his favour and the deceased did what she “independently wanted”.
Case study three: Wharton
The third case from 2011 that raised suspicious circumstances which do not amount to undue influence is Wharton v Bancroft and others [2011] EWHC (Ch) 3250 (dec). In this case, the testator, aged 78, was discharged from hospital with terminal cancer three days before he died. On the day of discharge he made a will in the presence of a solicitor leaving his entire estate (worth approximately £4m) to his long-term partner, Maureen Wharton, aged 63.
Within one hour of executing the will the testator married Maureen Wharton. Prima facie this case would not appear to be suspicious as the testator was simply leaving his estate to a long-term partner whom he wished to marry. However, several years before executing the will the testator told a solicitor that he wished to leave his estate to his three daughters and for Maureen Wharton to have a life interest. The testator also adored his granddaughter (evidence not challenged at trial) and was partly funding her education. There was no reason for the testator to exclude his granddaughter from his will.
Up until the testator’s discharge from hospital, he told several witnesses, including a gardener and work colleagues (who did not benefit in any way from the will) that he wished to leave part of his estate to his daughters. In addition, within two hours of executing the will, he spoke to his daughter, Vicki Wharton, on the telephone and said: “Don’t worry, I have taken care of everything, including Prisca’s (granddaughter) fees and you have nothing to ?worry about.”
After hearing the evidence of Maureen Wharton, ?His Honour Judge Norris QC also confirmed: “Maureen is ?not a witness on whose evidence I felt that I can ?confidently rely, unless it derives support from some document, some other testamentary or some proper inference or inherent probability. Because of her tendency ?to exaggerate and embellish, to flatly deny propositions ?in which there must have been more than a grain of truth, and to evade the areas of difficulty by having a lapse ?of memory.”
However, even though this case raised suspicious circumstances, HHJ Norris QC was not able to make a finding of undue influence. While the testator may have told several individuals of his wishes which did not reflect the content of his will, again there was another hypothesis to the testator being coerced into making a will against his wishes. The alternative being that the testator was simply getting his ‘house in order’ in leaving his estate to the woman whom ?he treated as his wife for 32 years and whom he had just chosen to marry.
Martin Oliver is a partner and solicitor advocate (all higher courts) at Wright Hassall LLP
