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High Court decision tightens undue influence Will challenges

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A recent High Court decision in the case of Re The Estate Of Francois Anthime Devillebichot [2013] EWHC 2867 (Ch) has provided guidance in bringing claims to challenge a Will on the basis of undue influence.

Chloe Brennan brought a claim against the estate of her late father Francois, to challenge his Will on the basis that he either lacked sufficient mental capacity to make it, or that he was unduly influenced by his siblings. Chloe was the deceased’s only child and had always understood that her father was content to die without making a Will. Had he done this, the rules of intestacy would have applied and Chloe would have inherited his entire estate, valued at around £480,000.  However, around a week before his death and whilst still in hospital, her father made a Will that left a substantial portion of his estate to his four siblings.

The Court was satisfied on the basis of the medical and witness evidence, that Francois had sufficient mental capacity to make the Will, and that he knew and approved of the contents of the Will. More focus was however given to Chloe’s allegations of undue influence.

Undue influence in Will challenges has been historically difficult to prove. The strongest evidence in an undue influence claim is usually the evidence of the person who was being influenced. In a disputed Will case, this person is the deceased and is therefore not able to give evidence. Usually, if a person instructed a solicitor to prepare the Will and had independent legal advice, it can be very difficult to show that they were unduly influenced.

In Chloe’s case, her father had not instructed a solicitor and evidence was given that her father had written the Will out himself, whilst in hospital. He therefore had not had independent legal advice before making the Will, giving Chloe grounds for suspicion and grounds to bring her claim. The Court found that there was a lot of evidence that two of her father’s siblings had the opportunity to influence him into changing his Will and that they did in fact influence him to do so.  However, the Court did not have enough evidence to show that the persuasion went beyond that, to the point that his freedom of action had been overpowered.  Judge Herbert QC said that whilst he found that there was persuasion, there was no coercion and it was insufficient to declare the Will invalid as a result of undue influence.

Interestingly, Chloe did not have a solicitor representing her during the trial. The judge commented in his judgment that her original claim did contain some very damaging assertions that undue influence had been exerted. However, he then went on to comment that she did not press on these allegations when cross examining the siblings, nor did she make enough of the argument when giving her oral evidence.  It is not clear whether had she done so, the result in the claim would have been any different.

I think this case not only highlights the evidential difficulties in bringing an undue influence claim, but also highlights the importance of having specialist legal advice, and representation, to ensure that the case is presented to the Court in the best possible way.  As a solicitor specialising in Inheritance Disputes and also as a registered member of the Association of Contentious Trusts and Probate Specialists (ACTAPS), I have dealt with numerous cases where such allegations have been successfully argued.

By Heather Korwin-Szymanowska, Associate solicitor and inheritance disputes specialist

Anyone facing this kind of inheritance dispute with their family members, or wishing to contest a will for any other reason, should always seek specialist legal advice at the earliest opportunity.