Are the Floodgates Open?
As published in ePrivateClient
The starting point has always been that it is very difficult to bring a successful undue influence claim. The first stage of the well-known case of Gill v RSPCA produced a rare example of undue influence being argued successfully. A recent successful undue influence claim is the case of Schrader v Schrader (2013). This raises the question as to whether the floodgates are now open and whether such claims pose an increasing risk in contentious probate matters.
If an undue influence claim is made with a view to setting aside a Will, undue influence itself will not be presumed. It must be shown that there was actual coercion of the testator's wishes such that the Will itself did not reflect the testator's own wishes. In other words, had the testator been asked whether he wanted to make the Will, he would have replied, "this is not my wish, but I must do it" (Wingrove v Wingrove (1886)).
In Schrader v Schrader the testator died aged 98. She had made a Will in 1990 which broadly divided her Estate between her two sons, Nick and Bill. In 2006 she made another Will which was far more favourable to Nick. Nick was, at that time, living with the testator as her carer.
Bill challenged the validity of the 2006 Will on a number of different grounds. One of those grounds was that Nick had unduly influenced the testator such that she made the 2006 Will against her wishes.
Acknowledging the difficulty in bringing an undue influence claim, Judge Mann said:
"It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop it being proved. The proof has to come, if at all, from more circumstantial evidence."
The circumstances in Schrader v Schrader were such that the testator was in a vulnerable position and dependent on Nick. A Will writer had been engaged having had no prior contact with the family. Under the Will the testator gave her house to Nick. The reason given to the Will writer for this was inaccurate and it was thought that this reason was likely to have come from Nick. There was no apparent reason why the testator would wish to change her Will in respect of the house.
Nick was described as "a forceful man with a forceful presence". He held a view that his parents had not treated him equally with Bill. He was involved in the making of the 2006 Will but had sought to distance himself from that when giving evidence. In addition, he had not disclosed the 2006 Will until steps were taken to prove the 1990 Will. While Nick was clearly aware of the 2006 Will, his initial unwillingness to disclose it suggested that he had misgivings about the circumstances in which it had been drawn up.
The combination of the factors above led the Court to infer that Nick had sowed the seed in the testator's mind that Nick should receive her house. In so doing this, he had unduly influenced the testator and the Court pronounced in favour of the 1990 Will. The departure from the previous position was that the Judge was willing to find that there was undue influence without direct evidence of coercion.
On its face, the case of Schrader v Schrader might appear to pave the way for an increase in undue influence claims, given that the Court inferred undue influence. It should be borne in mind, however, that the facts in Schrader v Schrader were quite extreme. In particular, Nick's apparently forceful personality and his conduct in giving evidence were influential factors in the Court coming to the conclusion that it did.
By contrast a recent case with a more familiar outcome was that of Brennan v Prior (2013). In this case the testator left £100,000 to his daughter, Chloe. The other assets in his Estate were divided between his siblings.
Chloe understood that her late father had been content to die intestate with the result that his Estate would pass to her. Chloe therefore brought a claim to challenge her late father's Will. As in Schrader v Schrader, there were a number of grounds on which this claim was based, and one of these was that the testator's siblings had unduly influenced the testator such that he made the Will against his wishes.
The Court recognised that the siblings had the opportunity to influence the testator during his lifetime. Indeed the Court found that the testator had been so influenced by his siblings. Nevertheless, this influence was not undue influence. It was held that the testator had made the Will in accordance with his wishes. There had been no coercion of his Will so Chloe's claim in undue influence was unsuccessful.
While Brennan v Prior serves as another reminder of the difficulty in bringing a successful undue influence claim, cases such as Gill v RSPCA and Schrader v Schrader clearly have implications for the beneficiaries of a will which is faced with such a challenge.
The question as to whether undue influence claims will increase in light of recent successful cases is harder to answer with certainty, and the attitude of the courts remains to be seen. The finding in Schrader v Schrader that there does not need to be direct evidence of coercion and that the court will look at more circumstantial evidence, may lead to more undue influence claims. Equally, other recent cases demonstrate that the hurdle for a successful undue influence claim is still a high one, so the floodgates, in my view, remain closed, if a little less firmly!