10 years ago FJG acted in the well reported case of Schrader v Schrader [2013] EWHC 466 (Ch). The case involved claims brought by two brothers who were in dispute regarding their late mother’s estate. Since this time Schrader has received positive mentions from judges in various cases that have followed.

In Schrader, the Claimant, Nick, brought proceedings to prove “in solemn form” the deceased’s Will dated in 2006. FJG’s client sought to resist that claim and submitted a counterclaim on behalf of the Defendant, Bill, to rely upon an earlier Will dated in 1990. The crux of the case centred on whether or not there was any undue influence by Nick upon the deceased during the preparation of the 2006 Will.

Undue influence is the phrase used to describe a situation whereby influence is exerted to prevent someone from exercising independent judgement. In the context of arguments about Wills, undue influence can be closely connected with coercion of the person making a Will or want of knowledge and approval of the contents of the Will. Once it is alleged that an otherwise valid Will was as result of some undue influence, the burden of proof shifts onto the person making the allegation.

The Schrader case was unusual in the sense that despite the lack of any direct evidence of coercion, the court inferred that the deceased’s execution of the 2006 Will was as a result of undue influence by Nick. What makes Schrader unusual is that there was not a particular fact that led to the court’s decision but multiple factors which included:

  1. The deceased’s vulnerability at the time of preparing the 2006 Will,
  2. The deceased being dependent upon Nick,
  • Nick had a forceful and physical personality,
  1. Nick held a belief that he and his brother had not been treated equally by their parents, and was more likely to try and even things up,
  2. Nick was involved in the preparation of the 2006 Will and made attempts to distance himself in the process in the course of evidence,
  3. Nick failed to engage with previous solicitors who might have known of family circumstances,
  • Nick failed to disclose the existence of the 2006 Will until steps were taken to prove the 1990 Will,
  • The source of the inaccurate explanation for altering the deceased wishes was likely to be Nick,
  1. There was no other reason identified as to why the deceased would wish to change her Will.

Cases of undue influence, by their very nature, remain difficult to establish with cogent documentary evidence. However, comfort can be drawn from examples such as Schrader which demonstrate that the courts are prepared to take a holistic approach and consider the totality of the evidence as presented. However, once undue influence is alleged, the responsibility falls to the accuser to establish the grounds upon which to support the allegation.

If you have concerns regarding the circumstance surrounding the preparation of a loved one’s Will then do get in touch to see how we may be able to assist by calling 0845 543 5700 or contact us.