Recent Developments in Contentious Probate and Undue Influence

25 November 2013

Author: Fiona Kirkpatrick
Practice Area: Private Client


The last number of years has seen a dramatic rise in the number of Contentious Probate cases being initiated in the High Court, both here in Northern Ireland and in England and Wales.

During 2013 there have been a number of interesting judgments relating to contentious probate coming out of the High Court in England and Wales, two of which I will briefly discuss here.

The basis for contesting wills is often an allegation of undue influence over the Testator, but although undue influence is frequently pleaded, it is rarely proved.

The well publicised case of Brennan v Prior & Others concerned a disappointed beneficiary who had been assured by her father during his lifetime that she would be well provided for. However, 12 days before his death, the Testator made a “deathbed” will leaving the bulk of his £0.5 million estate to his siblings and a £100,000 legacy to his daughter, Ms Brennan. The Testator had never previously made any will, Ms Brennan claimed, because he intended the whole estate to be inherited by her and not his siblings. Ms Brennan later challenged the will on a number of grounds, including undue influence by the siblings.

The claim was set against a family background of “colossal distrust”. Ms Brennan had been born out of wedlock with her father being the son of a French diplomat, and part of a very traditional family which, she claimed, had long since rejected her.

Although it is arguable that Ms Brennan had reasonable cause for her suspicions and doubts about the validity of her father’s will, she was unable to support her claim with any credible evidence. Turning specifically to the undue influence allegation, the judge ruled “I do not regard it as irrational or suspicious that Francois had divided loyalties all his adult life, and recognised them at the last. There is plenty of evidence that [his sisters] had the opportunity to influence Francois in the making of his will...However, I find persuasion but not coercion.” The will was held to be valid.

So “persuasion” it seems, is not enough. The bar for undue influence is set very high indeed.

However one recent case in which undue influence was successfully pleaded was that of Schrader v Schrader. This case concerned a Testatrix who had executed a will in 1990 which was drafted by her family solicitor. This will left the residue of her estate (including her house) to her two sons B and N in equal shares. However, she executed a further will in 2006 which left her house to her son N and the residue (which was of little value without the house) was to be divided between the two sons equally. This will was not prepared by the family solicitor but instead by a firm of will writers.

B was unaware of the later will until it was produced by N six months after his mother’s death. B sought to challenge the validity of the will on several grounds, one of which was undue influence by N.

Although N gave evidence that he had little knowledge of the later will and was unaware of the gift of the house to him, this was later refuted as it was shown that he had made a number of handwritten amendments to the draft will which had been prepared by the will writer.

Judgment was given in favour of B, upholding the allegation of undue influence and declaring the 2006 will to be invalid. The judgment took account of a number of factors including:

  • The Testatrix was a vulnerable lady who was dependant on her son N and had become increasingly so since 2005
  • The family solicitor was not engaged and no satisfactory reason could be given by N for engaging the will writers instead of the family solicitor
  • There was no reason identified in evidence for the Testatrix changing her will in favour of N
  • N was found to be a “forceful” man with a “strong physical presence” in comparison with his mother who was vulnerable
  • N’s direct involvement with the drafting of the will
  • The fact that N waited six months after the Testatrix’s death to produce the will suggested he may have had misgivings about it

It is as yet unclear whether the decision in this case will encourage an increase in the number of contentious probate proceedings in which undue influence is pleaded, however I would suggest that elements of this judgment may be frequently cited in the coming months and years.

Whilst contentious probate proceedings may be on the rise, there is still no substitute for a clear, well drafted will prepared by a solicitor. The Private Client department in Carson McDowell is experienced in all matters relating to the drafting of wills and the administration of estates, and can also provide advice on contentious probate issues. 

Please contact Neil Bleakley (head of department) or Fiona Wallace for more information.