Schrader v Schrader [2013] EWHC 466 (Ch)

Jessica Schrader's 2006 will left her house solely to son Nick, disinheriting Bill from its value. Bill challenged the will. Mann J upheld capacity and knowledge/approval but found undue influence, pronouncing against the 2006 will in favour of the 1990 will.

Facts

Jessica Schrader died aged 98 in January 2008. Her 1990 will, drawn by Cullens solicitors, left her residuary estate (including Southend Farm House) equally between her two sons, Nick (the claimant) and Bill (the defendant). A disputed will dated 12 April 2006, prepared by Miss Marks of Premier Wills (a will-writing business identified by Nick), specifically devised the farm house to Nick alone, with residue divided equally. The effect was to deprive Bill of his half share in the house, worth between £110,000 and £160,000.

Following a fall in May 2005, Jessica became frailer and Nick (together with his son Paul) moved into the farm house to care for her. Bill ran a vehicle repair and storage business from a yard directly behind the house, which Jessica found irritating though she was broadly supportive. The brothers were estranged, Nick describing his feelings toward Bill as “hatred” and harbouring a strong sense of unequal treatment by their parents and entitlement to his “inheritance”.

Nick arranged Miss Marks’ attendance, claimed Cullens did not do home visits (which was untrue), and was found to have made manuscript amendments to the draft will on the very page containing the gift of the house to him, despite his evidence distancing himself from its contents.

Issues

The court had to determine three challenges to the 2006 will:

• Whether Jessica had testamentary capacity applying the test in Banks v Goodfellow (1870) LR 5 QB 549.
• Whether Jessica knew and approved the contents of the 2006 will.
• Whether the 2006 will was procured by undue influence.

Arguments

Defendant (Bill)

Bill contended that the disposition was irrational in context: the 1990 will treated the sons equally; Jessica was frail and dependent on Nick; an unknown will-writer rather than the family’s regular solicitors was used; no record existed of reasons for the change; the will left the estranged brothers living next to each other; and Nick concealed the will for six months after death. He submitted Jessica lacked capacity, did not know and approve the will, and was unduly influenced.

Claimant (Nick)

Nick relied on the will’s rationality on its face, the presumption of capacity, due execution, and Miss Marks’ evidence that Jessica gave coherent instructions, was told of the need not to be under pressure, and had the will read over before executing it.

Judgment

Capacity

Mann J applied Banks v Goodfellow, noting the presumption of capacity arising from a will rational on its face. The will was rational on its face; contextual criticisms went to rationality in context, not to the face of the document. On the evidence as a whole, Jessica was alert, gave clear instructions, could itemise chattels, identified grandchildren and addresses, and her forgetfulness was not a significant badge of incapacity. Not knowing the precise value of the house did not defeat capacity. Re Loxston [2006] WTLR 1567 was distinguishable. Capacity was established.

Knowledge and approval

Adopting the framework of Norris J in Wharton v Bancroft [2011] EWHC 3250 (Ch) and the guidance of Lord Neuberger MR in Gill v Woodall [2011] Ch 380, the judge held that due execution, reading over by Miss Marks (who, though not a solicitor, was aware of the requirements), coherent instructions, and Jessica’s detail-oriented amendments (including removal of clause 5 at execution) raised a strong presumption which was not rebutted. Jessica understood what she was doing and its effect.

Undue influence

Applying the principles set out by Lewison J in Edwards v Edwards [2007] WTLR 1387, Mann J accepted that undue influence seldom attracts direct evidence and must often be inferred from circumstantial material. He found undue influence established by cumulative inference from: Jessica’s vulnerability post-fall; her dependency on Nick; the unexplained non-engagement of Cullens; the inaccurate reason given to Miss Marks (that Nick had sold his house, when it had in fact been sold by his trustee in bankruptcy), likely sourced from Nick; the absence of any other plausible reason for the change; Nick’s forceful personality and volatile temper (demonstrated by the recorded altercation and prior violent conduct); his keen sense of unequal treatment and entitlement to his “inheritance”; his attempts in evidence to distance himself from the will despite having annotated the draft on the page containing the gift to him; and his six-month concealment of the will after death. Miss Marks’ routine enquiry about pressure carried little weight as a subtly influenced testator would not answer affirmatively.

The judge inferred that Nick had been instrumental in sowing in his mother’s mind the desirability of his having the house, exploiting her vulnerability, although the precise occasions of pressure could not be identified.

Implications

The decision illustrates that undue influence in the testamentary context, while carrying a high burden of proof and no presumption (unlike lifetime dispositions), can be established purely on circumstantial inference where the cumulative evidence is inconsistent with any other hypothesis. Vulnerability of the testator, dependency on the beneficiary, a forceful personality, involvement in arranging and reviewing the will, departure from established testamentary patterns without plausible explanation, inaccurate rationales communicated to the will-draftsman, and concealment after death can together justify a finding of undue influence.

The case is a cautionary reminder for practitioners that the use of a will-writing service rather than an established family solicitor, and an absence of probing enquiry into motivation, previous wills, and family circumstances, may leave a will more exposed to challenge. It also confirms that capacity and knowledge and approval may be satisfied on the same facts that nonetheless support a finding of undue influence; these are distinct doctrines. The judgment does not alter the legal tests but demonstrates their practical application where a carer-beneficiary is closely involved in the making of a will by a frail and dependent elderly testator.

Verdict: The court pronounced against the 2006 will on the ground of undue influence and pronounced in favour of the 1990 will. Testamentary capacity and knowledge and approval were established, but the 2006 will was procured by undue influence exercised by Nick.

Source: Schrader v Schrader [2013] EWHC 466 (Ch)