An Elderly Parent and an Age Old Problem

  • Posted: 1st November 2019
  • Author: Noel McNicholas
  • Link: Permalink

Not for the first time and certainly not for the last, a recent case made the headlines concerning a dispute over the provisions of a Will which broadly centred on the conduct of the parties. What made this dispute stand out is that it may strike a familiar chord to many. That is, where an elderly and increasingly fragile parent is looked after by one child without their siblings pulling their weight.

This was the basis of the claim in Rea v Rea (2019), which resulted in the Deceased’s Estate passing to one child at the expense of the three remaining children. This led to accusation and counter-accusation resulting in bitterly-fought litigation. Among the usual allegations surrounding a lack of testamentary capacity and want of knowledge and approval, two other elements arose - a claim for undue influence and a separate claim for the oddly sounding fraudulent calumny.

What is fraudulent calumny? In simple terms, it means poisoning the mind of the Deceased with the express intention they change the terms of their Will. So, “if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting false or dishonest representations on their character, then the Will is liable to be set aside” (Re Edwards 2007).

Background

Mrs Rea (the Deceased) had four children - her daughter Rita and her sons Remo, Nina and David.

In 1986 Mrs Rea left a Will dividing her Estate between her children equally. But in later years Mrs Rita became increasingly frail and it became clear her children would need to do more between them to ensure her needs on a day to day basis were addressed. It was not disputed Rita did the majority of the work and was devoted to the care of her mother from 2009 onwards until her death in 2016. Her brothers between them did sometimes pull their weight from time to time but not anywhere close to the same extent as Rita. They also only saw their mother on an infrequent basis.

This culminated in Mrs Rea making a new Will in 2015 where Rita received her house worth in excess of £750,000 for “taking care of me”. This was effectively the sole asset and Mrs Rea instructed the solicitor who prepared the Will to also include the following provision to explain why she had effectively disinherited her sons:

“I DECLARE that my sons do not help with my care and there has been numerous calls from me but they are not engaging with any help or assistance. My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me and I do not wish for them to share in my estate save what I have stated in this Will.”

When a solicitor is taking instructions for a Will, they will usually examine carefully with the testator the reasons why a usual beneficiary, such as a child, will not benefit at all or only to a very limited extent. There can be perfectly valid reasons for this, such as the child is very comfortably off or the testator wishes to benefit a charity they have long supported.

The brothers, who were unrepresented at the trial having dismissed their legal team, claimed of the 2015 Will:

  • Mrs Rea did not have testamentary capacity (although this allegation was later abandoned).
  • Mrs Rea did not have knowledge and approval of its contents.
  • Rita procured it by way of undue influence.
  • Rita committed fraudulent calumny by poisoning Mrs Rea’s mind by casting aspersions on their characters.

If any of these allegations were proved, the 2015 Will would be set aside in favour of the 1986 Will dividing the Estate equally between the children.

The Court found:

  • Mrs Rea did have testamentary capacity and this was supported by the solicitor and the GP who had prepared a mental examination before its execution.
  • Although she had difficultly following complex English words, she did have sufficient understanding of the contents of the Will and did have knowledge and approval of its content.
  • Undue influence is notoriously difficult to prove as one has to establish the testator wishes have been overcome by coercion. No such finding was made against Rita despite the fact instructions for the Will were given in the presence of Rita who Mrs Rea wanted to be present. This particular claim failed “by a long way”.
  • There was no fraudulent calumny when the brothers alleged Mrs Rea told her solicitor her sons had “abandoned” her and that word was put in her mouth by Rita. There must have been a dishonest aspersion of the brothers put forward by Rita but that was not proved.

In summary, the Court effectively rejected the brothers’ separate evidence of Mrs Rea’s ability to comprehend the provisions of a Will and rejected the numerous accusations against Rita as angry, violent and manipulative. In particular, their attempts to blacken Rita’s name failed and the 2015 Will was accepted as valid even if its provisions were upsetting to the brothers.

Claims of a similar nature involving fraudulent calumny are quite rare but they do not always fail.

In Christodoulides v Marcou (2017), a dispute between two sisters resulted in a claim that one had poisoned the mind of their mother leading to disinheritance. The claim to overturn the Will in question succeeded as the wrongdoer was described by the Court as a 'thoroughly dishonest and manipulative individual'. But the evidence has to be there to make such a finding and such a claim would generally only be likely to succeed if there was no other explanation for the Deceased’s actions, other than the poisoning of their mind. As Mrs Rea’s sons found out, the path to success in a fraudulent calumny is not easy and an elderly parent can make their conduct come back to haunt them.

If you require further information about any contentious probate matter, please get in touch with Noel McNicholas on 01455 610747 or nm@thomasflavell.co.uk

A photo of Noel McNicholas

This article was written by Noel McNicholas. If you would like further information on the issues raised contact Noel to discuss in more detail.