This was a first instance decision, so not a binding precedent, however it clearly demonstrates how difficult it is to prove undue influence.
History of the matter
The parties were the children of the late Margaret Wilcox who died in 2016 aged 90. The claimant Edward McCarthy claimed that his mother’s home was held by her estate for him beneficially under a deed of trust made in 1998 or that he was entitled to it under his mother’s will made in October 2014 (“the 2014 Will”). Edward’s sister Lesley McCarthy, the second defendant, said that the deed was not valid as her mother did not understand the document or signed it under duress exerted by Edward. She and her brother Dennis McCarthy, the first defendant, both stated that the 2014 Will was also signed by their mother under the undue influence of Edward.
By the late nineties, Mrs Wilcox was in poor health and developed Alzheimer’s disease. At the end of 1997/early 1998 Mrs Wilcox bought the property in which she resided, from the local authority. The money to do so came from Edward. A deed to reflect the position was prepared by a solicitor and executed by Mrs Wilcox in March 1998. The deed confirmed that the property was conveyed to Mrs Wilcox merely as trustee for Edward.
At the same time Mrs Wilcox made a will (“the 1998 Will”), which was prepared by the same solicitor. The will was signed and witnessed, but it was not dated. The 1998 Will left the property to Edward and the remainder of the estate, after payment of debts and taxes and some gifts, was left equally between Mrs Wilcox’s children, grandson and granddaughter. It is surprising why, having signed a document (i.e. the deed) confirming that the property did not belong to her, but to her son, Mrs Wilcox then disposed of the property by her 1998 Will.
Mrs Wilcox’s husband died in 2003. The following year Mrs Wilcox executed a new will, drawn up by the same solicitor (“the 2004 Will”). In her 2004 Will she yet again disposed of the property. She left 70% of it to Edward and 15% each to Lesley and Dennis. The residuary estate was divided equally between her children and grandson.
By 2012, Mrs Wilcox was forgetful and confused. In January 2014 the GP noted Alzheimer’s disease with visits from the Alzheimer’s Society.
On 3 January 2014, Mrs Wilcox executed another will, again drawn up by the same solicitor (“the January 2014 Will”),. This will did not deal separately with the property, but provided that after debts and expenses Mrs Wilcox’s residuary estate should be divided equally between her children.
By October 2014, Edward was living with his mother at the property. On 1 October 2014 another will was signed by Mrs Wilcox, which was drawn up by Edward and witnessed by his best friend and his wife, Wayne and Karen McMillan, who were visiting Mrs Wilcox at the time. Each of them filed short statements to confirm this and that Mrs Wilcox was happy to sign. The statements were not however confirmed under oath or affirmation and the witnesses were not cross-examined.
Issues in the case
There was no direct evidence that Mrs Wilcox did not understand the deed or was coerced into signing it, but of course more often than not evidence relating to such allegations is not direct.
Edward said that his mother raised the subject of buying the property and he went with her to the solicitor’s office with the cheque. Edward said that the solicitor advised on the deed, but he heard no more about it until after his mother passed away. He claimed that the agreement with his mother was that if he supplied the purchase monies, she would leave him the property. In an email to his siblings in 2018 he said that his mother wanted to buy the property because the local authority “wanted repossession of it due to a single person living in a three-bed house”.
Edward’s credibility as a witness was questioned by Lesley. The solicitor could not recall seeing Edward and did not recognise him, but he did point out that the deed was drawn up more than 20 years ago. He said that he would have clearly explained the meaning of the deed and its implication. Mrs Wilcox presented as wanting to buy the house “via her son.” The solicitor added that he would have made sure that Mrs Wilcox knew what she was doing, and would not have allowed any pressure.
Lesley put a number of criticisms to the solicitor, including not dating documents properly, not asking about her mother’s health or personal circumstances before letting her sign the deed, and not making provision in the deed for such matters as maintenance of the property. It was also put that the gift of property in the 1999 will was unnecessary if Edward was already the beneficial owner of the property.
Lesley relied on a number of circumstances to show that it was unlikely that her mother understood or willingly signed the deed, whilst accepting that her mother was “not stupid” and that she was excited about owning her home for the first time. Lesley pointed out that the subsequent wills were inconsistent with the deed and that her mother told no one about it. Edward did not ask for the property to be transferred to him during their mother’s lifetime. She said that her mother told her that Edward should not have all the property as he had taken some money from his mother, and Edward had agreed.
It was not in dispute that Mrs Wilcox could not have made the purchase without the purchase price being provided by Edward. Dennis accepted that his brother asked him at the time if he wanted to help with the purchase monies, but he did not then have money to hand. Lesley accepted that she knew about it at the time, because she said she told Edward that it was a stupid idea.
It it unsurprising that Mrs Wilcox would have wanted her son, who had provided her with the purchase monies, to be entitled beneficially to the property. Indeed, at one point in her evidence Lesley said that her mother believed she had a moral obligation to leave the property to Edward as he had paid the money. As for the subsequent wills, it is clear that Mrs Wilcox wanted to make a will when dealing with the purchase of the property.
The judge came to the conclusion that Mrs Wilcox did understand the deed and signed it willingly. He therefore held that Edward was entitled to have the property transferred into his name.
Findings about the will
Once the property was transferred to Edward, the remainder of Mrs Wilcox’s testamentary provisions under her 2014 will would be the same. This included the appointment of all three parties as executors and trustees.
Edward said that it was while having tea with Mr and Mrs Milligan that his mother told them that the property would be left to him. He said that he was living at the property then and had a computer and printer there. He asked his mother if that was what she wanted, and would she sign a will to that effect. She replied yes. Accordingly he used the January 2014 Will, a copy of which he found at the property, as a template and simply altered the provision regarding the property. He then took what he had typed into the lounge, where his mother was still chatting to Mr and Mrs Milligan. She signed it in their presence and they both signed as witnesses.
The judge held that this account was somewhat concerning, having regard to the facts that Mrs Wilcox was then in her late eighties with a possible diagnoses of Alzheimer’s disease and given the fact that all previous wills had been signed at the solicitor’s office, and the witnesses were the best friend of the beneficiary of the change and the friend’s wife. However, given the background of dealings with the property, the judge was not persuaded that Mrs Wilcox’s signature was the result of undue influence.
This is an interesting, some might say surprising, judgment in that the Deceased was elderly and had Alzheimer’s disease. The will was executed in somewhat unusual circumstances (acknowledged by the judge). Yet it was not found that the testator was unduly influenced by her son. The case clearly demonstrates how difficult it is to succeed with an undue influence claim. It will be interesting to see if the judgment is referred to in future decisions and whether such claims are brought on their own or added to other will challenge claims given the high threshold to succeed.