Drafting Wills in Anticipation of a Future Challenge?

Re estate of Anna Rea (deceased) Rea v Rea and others
[2021] EWHC 893 (Ch)

Anna Rea died in 2016. There were two wills, the first in 1986, dividing the estate equally between her four children.
The second will in 2015 left her entire estate to one of her children, Rita. As expected the other children, Rita’s brothers, were displeased.

The deceased clearly anticipated a challenge to her second will as she included the following:
“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.”

As Anna anticipated, there was a challenge, and the other three children argued a lack of testamentary capacity, undue influence, and that Anna did not properly approve the second will, not speaking English very well.

The trial judge (Deputy Master Arkush) decided in Rita’s favour, having for the most part preferred her evidence that the second will properly represented Anna’s wishes. This position was supported by Anna’s solicitor and doctor.

The sons tried to appeal that decision, claiming that the trial judge had not properly tried the case. It was alleged that the judge was impatient and hostile, had restricted questioning, and had made premature decisions. It was also argued that they should have been allowed to cross-examine Rita. The appeal was unsuccessful.

Whilst the case can be considered primarily as a ‘grounds of appeal’ type case, there is a sage lesson for practitioners beyond this.
Anna’s second will expressly set out not only why she had chosen to prepare a new will, but also what her wishes were in the event of a challenge.

It is commonplace to include the reasons why a client is changing his or her position from that set out in an earlier will. It is less common to see a client’s wishes as to what should happen in the event of a challenge. Perhaps this will be more common in the future.

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