CONTESTING A WILL – SOME LEGAL PRINCIPLES FOR THE LEGAL BUFFS IN RELATION TO NO WIN NO FEE WILL DISPUTE CLAIMS
Here are some legal principles for those of you counting yourselves “legal buffs”, brought up to date by Deputy Master Arkush in Rita Rea v Remo Rea and others, 13 September 2019, EWHC 2434 (Ch) (https://www.bailii.org/ew/cases/EWHC/Ch/2019/2434.html)
I will explain in layman’s terms in my next blog!
55. In David’s closing submissions on behalf of the defendants, he made it clear that they did not pursue their case that Mrs Rea lacked testamentary capacity. He submitted that it was never their case to question her mental competence but claimed that they were ignored by their previous legal team.
56. The issues for determination are therefore:
(1) Whether Mrs Rea knew and approved the contents of the 2015 Will;
(2) Whether the execution of the 2015 Will was procured by the exercise of undue influence;
(3) Whether the 2015 Will was procured by a fraudulent calumny practised by Rita on Mrs Rea.
57. The legal principles applicable to this case are well established and it is not necessary to set out a detailed discussion of them. In relation to knowledge and approval I will adopt the summary in the judgment of Master Clark in Nutt v Nutt  EWHC 851 (Ch) at paragraph 34 onwards.
Knowledge and approval
58. The legal principles applicable to the issue of whether Mrs Rea knew and approved of the contents of the 2015 Will are set out in the judgment of Lord Neuberger MR in Gill v Woodall  Ch 380 at :
59. “Knowing and approving of the contents of one’s will is traditional language for saying that the will “represented [one’s] testamentary intentions” see per Chadwick LJ in Fuller v Strum  1 WLR 1097, para 59. …”
60. Previous case law (going back to the 19th century) approached the issue of knowledge and approval on a two stage basis. The court first asked whether the person challenging the will had established sufficient facts to “excite the suspicion of the court”, i.e. whether they had made out a prima facie case that the testator did not in fact know of and approve the contents of the will. Secondly, if the court held that the person challenging the will had excited the suspicion of the court, it then turned to consider whether or not those suspicions were allayed by the propounder of the will.
61. However, in Gill v Woodall, Lord Neuberger approved a one stage or holistic approach, in which the court should.
62. “consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.” 
63. I respectfully adopt that approach.
Undue influence and fraudulent calumny
64. The law was summarised by Lewison J (as he then was) in Re Edwards  EWHC 1119 (Ch) at para 47 as follows:
“There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
i) In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden of proving, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud;
v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will;
vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgement if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground;
ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of
intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.