Who's holding the strings?

There’s a danger of undue influence being used as a final challenge in contentious probate matters. Until last year, there had been no reported successful challenges to wills based on this claim since May 2007 (Re Edwards) and a number of unsuccessful ones.

But in quick succession, two cases succeeded in January and March. Was this a significant change or simply two unusual victories in a notoriously difficult area?

Family ties

Schomberg v Taylor [2013] EWHC 2269 (Ch) centred on Marlene Taylor, who died in early 2009. Her husband of 40 years had predeceased her in October 2008. Although the couple had no children together, Mr Taylor had two sons from a previous relationship, David and Paul, with whom they were both very close.

Mrs Taylor had a brother she did not get on with and a sister, Mrs Peskin, who was married to Mr Peskin with whom she had three children.

Mrs Taylor had made a will in November 2005, drafted by her solicitor, leaving her entire estate to David and Paul equally. However, in December 2008 (two months after her husband’s death) she made another will, drafted by the same solicitor, by which she left £25,000 to her personal assistant and carer (Mrs McKay), £5,000 to her cleaner, only £10,000 each to David and Paul and the residue of her estate to the three Peskin children equally.

David and Paul challenged the 2008 will’s validity solely on the grounds that it had been procured by Mr Peskin’s undue influence. They succeeded in particular as a result of the following:

• By October 2008, Mrs Taylor’s health had declined significantly: she had broken her hip twice in 2008 and had made an extremely poor recovery.

• Also at the meeting in which Mrs Taylor gave instructions for the will was Mr Randall, a retired solicitor, who had acted for Mrs Taylor’s family and whom she had asked to help with the terms of her new will. Mr Randall was a close friend of Mr Peskin’s and had previously acted for him. Mr Peskin had informed Mr Randall that he had lost an investment in an Icelandic bank when it collapsed in October 2008 and was “facing a bit of a crisis”. Mr Peskin also indicated that he expected his three children to lend his wife £40,000 from the inheritance they would receive
  from Mrs Taylor.

• Mrs Taylor told her solicitor she wanted to reduce the gift to David and Paul because they did not visit or help her. The contemporaneous evidence showed that explanation was untrue, as the three had remained very close after Mr Taylor’s death.

• Mrs Taylor did not have a close relationship with the three Peskin children.

• Mrs McKay gave evidence that Mr Peskin had persistently telephoned Mrs Taylor’s house to ask her to change her will to favour his children, to the extent that Mrs Taylor had instructed Mrs McKay to tell Mr Peskin that she could not come to the telephone.

Sibling rivalry

In Schrader v Schrader [2013] EWHC 466 (Ch), Jessica Schrader was an elderly widow who died in January 2008, aged 98, survived by two sons, Nick and Bill who did not get on – Nick said in evidence he “hated” Bill.

Mrs Schrader made a will in 1990 leaving her estate to the sons equally. In April 2006, she made another one leaving her farmhouse, which formed the bulk of the estate, to Nick, and the insubstantial residue to Nick and Bill equally.

Bill challenged the 2006 will on the grounds of lack of testamentary capacity, want of knowledge and approval, and undue influence. The first two failed, but the latter succeeded. Mann J relied on the following in particular:

• Mr and Mrs Schrader had been scrupulous in treating their sons equally over the years. The provisions of the will were inconsistent with such treatment and there was no explanation for the change.

• Nick had given evidence that was demonstrably untrue. He said he sold his house to help his mother refurbish her farmhouse, whereas his house had been sold by his trustee in bankruptcy. He said he had not been involved in the preparation of the 2006 will and was unaware of its contents until after his mother’s death, whereas he had made the arrangements and had made several manuscript amendments to a draft will prior to execution.

• Instead of engaging the family solicitors, a firm of will writers with no previous knowledge of the deceased was instructed.

Applicable proof

In both cases, the judges cited with approval the nine-point summary of the law provided by Lewison J (as he then was) in Re Edwards. Neither suggested that the law had changed nor should be relaxed. So what do these decisions mean in practice?

Undue influence remains very difficult to prove. The party alleging it must prove actual coercion. As this is a serious allegation, the courts consider it something that is inherently unlikely to have happened. Even though the applicable proof is the usual civil standard of balance of probabilities, cogent evidence is required to prove
that something inherently unlikely is more likely than not to have happened (Re H (minors) [1996] AC 563).

Although actual coercion can be proved by inference from surrounding circumstances and not just by direct evidence of coercion, which is hardly ever available, both cases show that the circumstances have to be quite unusual.

In particular – and perhaps contrary to the views of many lay clients – a beneficiary being in the same room when instructions are given and/or when the will is executed is not, of itself, a badge of undue influence.

There may be a number of innocent explanations for this. Moreover, even if the beneficiary did have a role in persuading the testator to make a will favouring them, mere persuasion does not equal actual coercion and is therefore not enough.

Allegations of undue influence are often triggered by feelings of jealousy or resentment between family members, which may have complex and deep roots. Lawyers should analyse and test the allegation (and the evidence supporting it) rigorously, bearing in mind that “the problem... in so many cases, is that the parties seem to think that a judge can look into the hearts of witnesses and somehow divine the truth. That is not how the system works. A judge can only find facts on the evidence properly adduced.” (Proudman J in Hubbard v Scott [2011] EWHC 2750 (Ch) at [42]).

A testator’s explanation given to their solicitor for a change in the will which is demonstrably untrue may be an indication of undue influence. The explanations given in both Schomberg and Schrader (and, indeed, in Re Edwards) were shown to have been untrue.

An elderly and physically and/or mentally weak testator may be more susceptible to coercion than a younger testator with a strong character. Mrs Taylor was “in a very fragile physical and mental state” and had been “[worn down] so that she did what Mr Peskin wanted rather than what she otherwise judged to be best in order to get him off her back and have a quiet life”.

Pleading undue influence ‘just in case’ as a back-up to other challenges (e.g. testamentary capacity, and knowledge and approval) can have dangerous costs consequences.

Norris J in Wharton v Bancroft [2012] EWHC 91 (Ch) recently agreed with the view expressed in Re Cutcliffe’s Estate [1959] P 6 that “it must surely be obvious to anyone who has studied the history of litigation in the Probate Division… that where pleas of undue influence and pleas of fraud are made, the probability, at any rate, if they are unsuccessfully made, is that people who make such charges and fail will be condemned in the costs not only of that charge but of the whole action”.

Finally, if undue influence is pleaded and it becomes apparent during the litigation that the allegation is likely to fail, it may be worth abandoning it, if necessary by applying to amend pleadings, to minimise the potential exposure to future costs.

Edward Hewitt is a barrister practising from 3 Stone Buildings