The testator made a will in 2015 and died in the following year, aged 85. The claimant was her daughter, who had moved in with her mother in 2009 to care for her. The three defendants were the testator’s sons. The 2015 will provided for the claimant to be given the testator’s house and for the residue of her estate to be shared equally between her four children, that being a departure from her previous will made in 1986 which had left all her property to her four children in equal shares. The 2015 will included a declaration which stated that her daughter had been her sole carer for many years, that her sons did not help with her care and that she did not wish for them to share in her estate save to the extent stated in the will. The defendants were not told of their mother’s 2015 will during her lifetime. The claimant issued proceedings asking that the court decree probate of the 2015 will. In a defence and counterclaim, the defendants disputed the validity of the 2015 will, alleging that their mother had lacked testamentary capacity when the 2015 will was made, that she did not know and approve its contents, and that the claimant exerted undue influence over their mother. The judge held that, although the mother had had testamentary capacity at the time of making the 2015 will, the case as to undue influence was made out, and pronounced against the 2015 will in favour of the 1986 will. The claimant appealed.
On the appeal—
Held, appeal allowed. The burden was on a person alleging undue influence to prove it to the civil standard: that it was more likely than not. The extent, if any, to which it was appropriate to have regard to inherent probabilities would be affected by the particular facts. Even so, it would commonly be appropriate to proceed on the basis that undue influence was inherently improbable. In this context undue influence meant coercion, and potential beneficiaries were surely less likely to resort to coercion than to rely on affection, gratitude or even persuasion. Undue influence could be proved without demonstrating that the circumstances were necessarily inconsistent with any alternative hypothesis. On the other hand, the circumstances had to be such that undue influence was more probable than any other hypothesis. If another possibility was just as likely, undue influence would not have been established. For coercion to be proved, it had to be shown to be more probable than any other possibility. In the present case, there was no question of coercion having been the most probable possibility. It followed that the judge was mistaken in finding undue influence, since there was no direct evidence of coercion and it could not reasonably be found that the circumstances justified such an inference. Accordingly, the court would admit the 2015 will to probate in solemn form (paras 27, 32, 57, 61, 62, 63).
Robert Deacon (instructed by Britton and Time Solicitors) for the claimant.
Graeme Wood (instructed directly) for the defendants.