Unfortunately it has always been a constant source of surprise and, it has to be said, disappointment when clients realise how difficult it is to succeed with a claim that a testator/testatrix was unduly influenced into making a specific gift in a will, or even the will itself. However, a case heard before Mr Justice Lewison in the Cardiff District Registry of the Chancery Division of the High Court in May this year may have made it easier.
Burden of proof
Unlike in relation to lifetime gifts, there are no presumptions of undue influence in relation to wills. Whoever alleges that undue influence was brought to bear on a testator/testatrix, must satisfy the following statement made by Viscount Haldane in Craig v Lamoureux [1920] AC 349 : “[It is] not enough to show that someone has the power unduly to overbear the will of the testator. It must be shown in the particular case the power was exercised and that it was, by means of that power, that the will was obtained.”
However, it is not where the burden of proof lies which has been the major stumbling block in bringing a claim of undue influence in respect of wills, it is the test itself and the difficulty in satisfying that test: “Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgement … will constitute undue influence.”
While it is clear that a testator/testatrix can be unduly influenced even without force being either used or threatened, the test is still a tough one to satisfy. The reality is that the person alleging undue influence has to prove that “overt acts of improper pressure or coercion such as unlawful threats” were brought to bear on the testator (Lord Nicholls in Royal Bank of
False allegations
Against this background, the recent case of John Edwards deceased v Terence James Edwards & Ors [2007] may represent a turning point in undue influence claims. In this case, Mr Justice Lewison held that the last will of the deceased was made under undue influence on the basis that T, the deceased’s son and sole beneficiary of the deceased’s last will, had poisoned the deceased’s mind against the other two beneficiaries of the original will (the deceased’s other children, R (who predeceased her) and J) by making untruthful accusations against J and his wife which caused the deceased to change her will in T’s favour.
T lived in the deceased’s house with her, as a result of which T expected to obtain ownership of the house upon her death. T was, therefore, furious when J arranged for a notice of eviction to be served on T, after the deceased had been admitted to a nursing home. T’s solution to this problem was to remove the deceased from the nursing home (against medical advice) and take her back to her home and ‘persuade’ her to alter her will leaving everything to him. Evidence was produced to the court to show that T had made false allegations against J; namely that he had put his mother in a nursing home to die, when the truth was that he had offered to take her back into his house once she was declared medically fit to leave the nursing home. The evidence also showed that the deceased was frightened of T, who was aggressive and verbally abusive to her.
Fraudulent calumny
Upon hearing all the evidence, the judge held that T was guilty of “fraudulent calumny”. That ‘species of fraud’ arises when one person poisons the testator’s mind against another, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character. The judge went on to explain that 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. Against this background, the judge held that T had deliberately poisoned the deceased’s mind against J. As a result, the deceased’s discretion and judgement had been overborne when she changed her will in T’s favour. The deceased’s last will should therefore be set aside on the ground of undue influence.
In his concluding paragraph, the judge commented that “there is no doubt in my mind” that T had “every motive for persuading his mother to alter her will by any means available” and the “opportunity to use undue influence in persuading his mother to change her will”. While, in theory, the opportunity and motive to use undue influence is not enough to establish it, on the basis that he could find “no other reasonable explanation” for the deceased having changed her will, the judge concluded that T must have deliberately poisoned his mother’s mind against J and thereby unduly influenced her actions in making her last will.
To succeed in a claim of undue influence, it is clear that it is not enough to show that the facts of a situation are consistent with undue influence. It must be shown that the facts are inconsistent with any other possibility. However, if there is “no other reasonable explanation” for a legacy or for the will itself, it would appear that this hurdle may now be overcome. Rather than having to prove that the facts are inconsistent with any possibility other than coercion (as defined through the relevant case law), it may be possible to succeed by proving that there is no other reasonable explanation other than that the testator/testatrix’s mind was poisoned against a natural beneficiary by dishonest aspersions.
Sarah Foster is a partner at Henmans.