Undue Influence – An update
There have been four new cases highlighting the difference between making a claim for undue influence in relation to lifetime transactions and the requirements for actual undue influence claims challenging the validity of a Will.
Actual Undue Influence
Hubbard v Martin  EWHC 2750
This case is an excellent example of how important it is for the alleger of undue influence to have cogent evidence to back up the claim. In this case the deceased had conducted a long friendship with a lady. As he had become older and more frail, this lady visited him as did her two daughters (the claimants). The deceased had no children of his own and no immediate family. He made a will in 1997 leaving his estate to a neighbour and to the claimants if she predeceased him. The neighbour died before the testator and the frequency of the daughters’ visits petered out.
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In 2009 the deceased made a new will leaving everything to his Polish cleaner. He died 11 days later. The daughters asserted that the cleaner had not been working for him for very long, that there was no relationship between them and that she must have unduly influenced to procure the kind of benefit the will made for her.
The cleaner said she had worked for the deceased for over 3 years, this had developed into her living in the house part time and acting as his carer, and that the deceased had spoken of marriage but had later resiled from it.
The judge went through the requirements for a claim of undue influence to be made out:
- Coercion, victimisation or domination
- The free will of the testator must be overborne
The court reminded itself that it is not enough to say that the will which has been made is consistent with the use of undue influence, instead it has to be proved that it is inconsistent with any contrary hypothesis (Craig v Lamoureux  1 AC 349)
Consequently the claim of undue influence failed because there was no actual evidence of it, and it was clear that the deceased felt there was nobody who he was obliged to leave his estate to, the claimants had stopped coming to see him and the cleaner had become close to him, even if only for a short time. It was therefore understandable that he had changed his will in the way he had.
Wharton is a lesson in how not to conduct a probate claim. The judgment of H.H.J. Norris contains this truism:
The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if that focus is lost.
In Wharton a 78 year old man made a deathbed will leaving all of his £4 million estate to his second wife. They had been together for 32 years, but married for only 3 days when he died. His daughters from his first marriage challenged the will for lack of capacity, undue influence and want of knowledge and approval. At some stage pre-trial they abandoned their capacity challenge.
The will had been prepared by a solicitor who had taken instructions at the testator’s home, he had prepared a manuscript will which was executed on the same occasion. There was an independent attesting witness in the form of a lady from the Registry Office who had done the marriage. The solicitor was quite sure that the testator had capacity, understood the will and had not been unduly influenced. In particular he understood that if he died intestate his estate would be liable to inheritance tax, but that if he left it all to his wife it would not.
In reminding himself about the principles of any undue influence claim in the context of a probate action the judge said:
- Execution of a will as a result of undue influence is a fact that must be proved by those that assert it
- They must establish that there was coercion, pressure that has overpowered the freedom of action of the testator without having convinced the will of the testator. If the evidence only establishes persuasion, then the cause of action will not be made out.
- Where the line between “persuasion” and “coercion” is to be drawn will in each case depend in part upon the physical and mental strength of the testator at the time when the instructions for the will are given. Was the testator then free and able to express his own wishes? Or was the testator then in such a condition that he felt compelled to express the wishes of another?
- In many cases the fact of undue influence cannot be proved by the direct evidence of the witnesses but is an inference to be drawn from other prven facts. It is sometimes said that an inference of undue influence should not be drawn unless the facts are inconsistent with any other hypothesis. The danger of that formulation is that it may cause one to lose sight of the relevant standard of proof; so I have paid particular attention to what was said by Morgan J at para 141 of Cowdery:
- The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator’s will have been overborne by coercion rather than there being some other explanation
- The fact of undue influence is in truth a complex of facts involving the establishment (by proof or inference) of the opportunity to exercise the influence, the actual exercise of the influence, the actual exercise of the influence in relation to the will, the demonstration that the influence was “undue” (i.e. went beyond persuasion) and that the will before the court was brought about by these means
This presents a more nuanced approach than the reliance in Hubbard upon the principle that undue influence has to be positively proven.
The court assessed carefully the evidence surrounding the testator’ frailty at the time of the will being made. He said (para 111) “the fact that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken, and whether, if taken, it produced the 2008 will”. This comment clearly sets out the steps which have to be taken from the mere fact of frailty and dependence on another to establishing both that undue influence was exerted, and that it was the undue influence which produced the will.
Curtis v Curtis  EWCA 1602
This is a case about a claim of undue influence in relation to a lifetime transfer, and thus involved the presumption of undue influence. A couple bought a matrimonial home in 1988. Some time later the husband became interested in attending spiritual sessions, mediation workshops and yoga classes at a centre run by it “spiritual leader” Mrs Denton. Mrs Denton persuaded the husband to sign over his home to the charitable trust so that it could be a “sister centre”. This was done in 2004 by written deed, after which the trust paid off the mortgage and paid for some improvements.
In 2008 Mr Curtis left the property, his marriage having run into problems. He went to solicitors and claimed that his consent to the transfer had been obtained by undue influence. The presumption was engaged because the relationship was one of trust and confidence, and the transaction was manifestly to Mr Curtis’ disadvantage.
The burden therefore shifted to the trust to show that Mr Curtis had entered into the transaction after “full, free and informed thought”. Whilst it was accepted that he was an intelligent and reasonable man, the judge nevertheless found that the relationship between him and Mrs Denton and her coterie was such that the presumption was not displaced. Consequently on the trust’s appeal the Court of Appeal, the appeal was dismissed.
Liddle v Cree  EWHC 3294
Mr. Liddle and Mrs. Cree had been partners for many years both personally and professionally in that they cohabited and they ran a farm and equine business together. After the breakdown of their relationship in 2008 they remained running the farm together, and after about a year they agreed to partition the farm so that Mrs Cree got the house and a small parcel of land, and Mr Liddle got the barn (which had permission to be developed into a house) and a larger parcel of land. Mrs Cree’s share was worth more than Mr Liddle, but she had made a greater investment than him at the start of the relationship.
Mr Liddle had suffered from bi-polar disorder for many years and had been treated with lithium for it. By the time of the partition being formalised in March 2010, he had possibly developed hypothyroidism as a side effect of the lithium. He had a heart attack 4 months before the paperwork was signed and had been discharged with a stent and beta blockers, he also complained of leg ulcers and being tired all the time.
By June 2010 he was going to the GP who described as being “dishevelled, flies un-done, cannot look after himself”.
In July 2010 he went to hospital with a gall stone problem and was discharged in September, at which point Mrs Cree wrote to Social Services to say that Mr Liddle was basically unable to care for himself.
Mr Liddle later sought to challenge the transfers which had effected the partition, and sought to have them set aside on the basis that they were procured by undue influence. He sought to raise the presumption of undue influence on the basis that he had a relationship of trust and confidence with Mrs Cree, that she had dominated him and abused his vulnerability to secure a deal with was advantageous for her and unfair for him.
The court took a different view. The relationship had been one of mutual trust and confidence, but most of that had evaporated upon the separation. Whilst his health had declined, and his hypothyroidism could cause confusion and memory problems, the nature of the partition was a deal which had been negotiated at arm’s length over the course of 2009, before many of the more serious health problems arose. Whilst the deal was disadvantageous for Mr Liddle, it was not unfair.
Mr Liddle also argued that Mrs Cree, realising his decline, had a duty to urge him to get independent legal advice and reconsider the deal. The court made some mild criticism of her for not telling him to get advice, but concluded firmly that she had no duty to do so.
The lesson behind all of these cases is the one that is sometimes difficult to make emotional clients understand; the testator/transferor may have been doddery and verging on bonkers, the beneficiary/transferee may be a heartless, gold-digging cynic; that is not enough. What is required is evidence that the opportunity to exert undue influence was taken, and that the influence procured the provisions complained of.
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