This matter was described as tragedy for the whole family by Lord Justice Lewison, and the cost in terms of time, fees, stress and family relations must be immeasurable.
The judgment illustrates firstly the detailed and technical nature of a will dispute trial, and secondly how important it is to be legally represented.
The initial trial was held over two and a half days in September 2019 with an unsuccessful appeal being handed down in April 2021 and a successful appeal in February 2022. This matter is now going to be heard at a (rare) re-trial; the fourth hearing in the matter, six years after the testator’s death.
The facts
Anna Rea died in 2016 leaving a will of 2015 giving the vast majority of her estate to her daughter Rita. A previous will of 1986 had split her estate four ways to Rita and Anna’s three sons. The reasons given in the will file for the drafting of the 2015 will were that Anna felt that her daughter had cared for her in the last years of her life (moving in and taking over the vast majority of care duties) whilst her sons had not assisted. Indeed Anna included a specific clause in her will to instruct her executors to defend any claim by her sons.
The sons challenged the 2015 will on the usual bases, alleging that Anna lacked testamentary capacity and had no knowledge and approval of the will. English language skills were a point in dispute. They also alleged that the will was procured by undue influence exerted by Rita and/or “fraudulent calumny” whereby Rita poisoned Anna’s mind against the sons. They later withdrew the allegation of lack of capacity.
The evidence
The evidence of the will-drafter was crucial in this case bearing in mind she had carefully recorded Anna’s instructions not to benefit her sons and described her as being “strong-willed” and perfectly capable of discussing her instructions in basic English. In addition a medical report was obtained to confirm testamentary capacity and both the will-drafter and doctor were present at the will signing. It is hard to see what else the drafter could have done to confirm capacity and ensure that instructions were given freely without influence.
The evidence of the sons was largely described as “hyperbole” by Deputy Master Arkush at the initial 2019 trial. It was stated by him that the aim was obviously to discredit Rita, downplay Anna’s ability to speak English and completely dismiss the evidence of the will-writer. Only the youngest son accepted the possibility that the will-drafter’s evidence was true.
The decision at trial
The Deputy Master concluded that Anna’s English was sufficient and that she did have knowledge of and approved of her will. He also concluded that the relationship between siblings was fraught and that the sons had set out to denigrate Rita’s personality- extrapolating what they described as her volatile nature into an inference of undue influence which was not borne out by the evidence. Likewise, allegations of fraudulent calumny were based on what the sons alleged as Rita’s bad character. The 2015 will was upheld.
The appeals
One of the interesting issues arising in this case is in fact procedural in that the sons let their legal representation go shortly before trial and proceeded to act for themselves in the two and half day trial, cross-examining Rita and dealing with the Deputy Master’s questions themselves.
The first appeal was heard in April 2021 and requested a retrial on the basis that the trial was “unfair by reason of the way it was conducted by the Judge” . This was broadly based on the allegation that the Deputy Master had treated the two sides unequally, pre-judged the outcome and thereby hurried the sons along in a hostile manner, potentially not giving them the time and space to gather their thoughts and documents to carry out an effective cross-examination. In particular they alleged they were not given the opportunity to fully cross-examine their sister. This appeal was unsuccessful.
The sons prevailed the second time around however, in their appeal in February this year. Their success was based solely on the fact it was held that the Deputy Master had not given them the opportunity to fully cross-examine their sister, in circumstances where he had thought that the issues has already been covered earlier, when in fact the questions posed to Rita had been by Rita’s own counsel. In other words the issues had not been raised in a cross-examination of Rita, and she had not been challenged.
Only a tiny minority of disputes go to trial
By its very nature, a dispute about an inheritance can fast become hijacked by perceptions of family relations, personality and expectations. Only a tiny minority of will disputes ever go to trial, much less a re-trial. In these scenarios one can only hope the parties can find some measure of compromise before embarking on their fourth visit to the High Court. We would always strongly recommend resolving a dispute by negotiation or mediation as at least the parties can reach a conclusion they have bought into.
Alison Regan is a partner in the Trust and Estate Dispute Team and also Joint Managing Partner.