The testatrix (W) was the second wife of the late Brian Taylor (H) and had two step sons, David (D) and Paul (P), the first and second defendants. She had a sister, Penny, who married the eighth defendant, Mr Bruce Peskin (B), and who had three children, the fifth to seventh defendants, Cindy, Andrew and Dominic (the 2008 beneficiaries). W and H visited Penny and B, until a few years before they died. They stopped doing so after B, who was in financial difficulties, repeatedly pressurised them to obtain financial assistance in relation to a property development and sale. As a result of this pressure, in 2005 W made a will in which she removed B as executor but otherwise made the same provisions as in earlier wills making D and P the main beneficiaries. W’s physical and mental health deteriorated significantly during 2008 when she became increasingly frail and relied substantially on H. In May and June 2008 W spent some time in a nursing home following the fracture of both hips and a subsequent hip replacement operation. H died on 17 October 2008 when W was suffering from cirrhosis. On the evening of H’s death W told D and his wife that she had inherited H’s estate and that her estate would be left in equal shares to D and P in equal shares and repeated this representation to D at the funeral. During the period between the death of her husband and the execution of the 2008 will, W was physically and emotionally very frail, indicating on occasion that she no longer saw any purpose in continuing to live. However, B repeatedly telephoned her to persuade her to make substantial provision for his children, the 2008 beneficiaries, in her will and thus disinherit her stepsons. He led her to believe that he was in financial difficulties and procured the second claimant (R) who was his former family solicitor, to be present on 25 November 2008 when Mrs Schomberg (S), the first claimant, a solicitor who had acted for W since 1988 attended W’s house in order to take instructions for the 2008 will, so that W felt compelled to comply with B’s requests. W was accompanied by a long-time friend who left the room while instructions were being given. S was concerned about the proposed changes to the will and asked for W’s reasons and W told S that D and P were not close to her and she wished to replace them as beneficiaries in her will. The will was duly drawn up and sent to W with a detailed explanatory letter and subsequently executed on 18 December 2008. Following the death of W the claimants applied to propound the 2008 will in solemn form. D and P counterclaimed that the 2008 was executed under the undue influence of B producing evidence inter alia that B had reason to coerce W to produce a will in favour of the 2008 beneficiaries since he was relying on them to provide at least some of the money they received to enable him to meet debts incurred in the fallout from the Icelandic banking crisis. They sought to have the 2005 will pronounced. The proceedings were complicated by the facts that:
- (a) the claim against B was discontinued though he then sought to put 2 witness statements before the court;
- (b) the 2008 beneficiaries did not seek to defend the claim but instructed counsel to take a watching brief and make any representations necessary concerning consequential orders and costs; and
- (c) R made no witness statement.
The other defendants did not appear and were not represented.
Held (Case as to undue influence in respect of the 2008 will made out and pronouncement against the 2008 will. 118. Further submissions as to further evidence required so far as submitting the 2005 will to probate is concerned [117 118]).
B’s witness statements were not accepted in evidence before the court and were not read. It would have been inappropriate to do so since B chose not to defend the matter . The burden of proof lay with D and P to show that B so coerced W following the death of H that, so far as the making of the 2008 will was concerned, he overpowered her volition without convincing her judgment. It was not necessary to be satisfied that there was no explanation but for undue influence. However, in view of the seriousness of the allegations and bearing in mind the inherent improbability in any situation of undue influence having been exercised, it was necessary to be satisfied that the evidence taken as a whole was sufficiently cogent and strong to satisfy the court, albeit on the balance of probabilities, that the explanation for what has occurred was that W’s will was overborne by coercion rather than there being some other explanation. Notwithstanding that there was no little or no opportunity to cross examine witnesses on the evidence D and P had proved the undue influence alleged. There was no doubt that W was in a very fragile physical and mental state. There was cogent evidence that B subjected her to unwanted and persistent pressure so far as the making of the new will was concerned following H’s death. Further, it was telling that Ws previous two wills had provided for D and P to take the residue and there was no obvious reason why such a fundamental change had been made unless W had been pressured into making a change while the explanation she gave to the effect that D and P were not very close to her was simply not correct. Also B had a motive for seeking to coerce Mrs Taylor into doing what she did. Not only did his own children stand to benefit under the 2008 will, but there was evidence to the effect that he had his own financial difficulties and looked to his children’s inheritance to achieve some form of financial security.JUDGMENT MARK CAWSON QC: Introduction  This is my judgment in the matter of Schomberg and Randall v David Howard Taylor & ors.  In this claim, the claimants, Vanessa Patrice Schomberg (Mrs Schomberg) and Derek George Randall (Mr Randall), who are named as the executors in what purports to be the last will and …