Rita Rea v Remo Rea

JurisdictionEngland & Wales
JudgeHodge
Judgment Date26 July 2023
Neutral Citation[2023] EWHC 1901 (Ch)
Year2023
CourtChancery Division
Docket NumberCase No: HC-2017-001938

In the Matter of the Estate of Anna Rea, Deceased

Between:
Rita Rea
Claimant
and
(1) Remo Rea
(2) Nino Rea
(3) David Rea
Defendants

[2023] EWHC 1901 (Ch)

Before:

HIS HONOUR JUDGE Hodge KC

Sitting as a Judge of the High Court

Case No: HC-2017-001938

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS

IN ENGLAND AND WALES

PROPERTY, TRUSTS AND

PROBATE LIST (ChD)

Royal Courts of Justice,

Rolls Building.

Fetter Lane,

London

EC4A 1NL

Will — Contested Probate claim — Retrial ordered by Court of Appeal — Dispute between the only daughter and the three sons of the testatrix — Whether 2015 Will should be admitted to probate instead of 1986 Will — Later will disputed on grounds of want of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny —

The following cases are referred to in the judgment:

Andrews v Styrap (1872) 26 LT 704

Ashkettle v Gwinnett [2013] EWHC 2125 (Ch)

Banks v Goodfellow (1870) LR 5 QB 549

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380

Re Edwards [2007] EWHC 1119 (Ch)

Hawes v Burgess [2013] EWCA Civ 74

Henein v Laffa [2015] EWCA Civ 700

Hughes v Pritchard [2022] EWCA Civ 386, [2022] Ch 339

Jones v National Coal Board [1957] 2 QB 55

Nutt v Nutt [2018] EWHC 851 (Ch)

Rea v Rea [2019] EWHC 2434 (Ch), [2021] EWHC 893 (Ch), [2022] EWCA Civ 195

Schomberg v Taylor [2013] EWHC 2269 (Ch), [2013] WTLR 1413

Schrader v Schrader [2013] EWHC 466 (Ch)

Simon v Byford [2014] EWCA Civ 280

Spiers v English [1907] P 122

Mr Robert Deacon (instructed by Britton & Time, Hove) for the Claimant

Mr Graeme Wood (instructed under the Bar Direct Access Scheme) for the Defendants

Hearing dates: 4–7 July 2023

Draft judgment circulated: 24 July 2023

Judgment handed down: 26 July 2023

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

HIS HONOUR JUDGE Hodge KC

Hand-down: This judgment was handed down at a remote hearing by Teams at 10.30 am on Wednesday 26 July 2023. It has been circulated to the parties or their representatives by email and will be released to The National Archives.

His Honour Judge Hodge KC:

I: Introduction

1

This is my reserved judgment following the retrial, over four days from 4 to 7 July 2023, of this contested probate claim, which was issued as long ago as 5 July 2017. The claimant is represented by Mr Robert Deacon (of counsel), instructed by Britton & Time Solicitors; and the defendants are represented by Mr Graeme Wood (also of counsel), who is instructed directly by the defendants. Neither counsel was involved in the original trial before Deputy Master Arkush. Since all of the parties to this litigation bear the same surname ( Rea), in this judgment I shall, without intending any discourtesy to any of them, adopt their first names.

2

For structural reasons only, this judgment is divided into the following parts (although these are not self-contained, and the contents of any one part have informed other parts):

I: Introduction

II: Background

III: Procedural history

IV: Applicable law

V: The retrial

VI: Witness evidence

VII: Submissions

VIII: Analysis and conclusions

II: Background

3

The parties to this probate claim are the four adult children of the late Mrs Anna Rea ( Anna) who passed away, aged 85, on 26 July 2016. Anna was divorced from her husband, Mr Huda, many years ago. There were three sons and one daughter of the marriage, namely (and in order of their dates of birth) the first defendant ( Remo), the second defendant ( Nino), the claimant ( Rita), and the third defendant ( David). They are all now in their late fifties and early sixties.

4

Anna was born and grew up in a small village in Italy in 1930, moving to England at the age of 19 and later marrying the father of the four siblings. There is an issue between the parties as to Anna's understanding of, and ability to communicate in, the English language. The defendants assert that this was very poor whereas Rita's evidence is that she, her siblings (none of whom spoke Italian) and her father always communicated with Anna in English. Rita says that her brothers' suggestion that their mother did not speak English does not make sense given that she had lived here since 1949 and they spoke to her in English for their whole lives. In opening, Mr Wood also refers to evidence that by February 2015, Anna's cognitive functioning was “significantly impaired”.

5

There is also an issue concerning Anna's care. It is common ground that Anna suffered from a number of health conditions. She was deaf in one ear and had poor hearing in the other, necessitating the use of a hearing aid. Anna was affected by diabetes for about the last 20 years of her life. She had suffered a serious heart attack in 2009. She was afflicted by chronic kidney disease, and bilateral cataracts. From about 2014, she suffered from sciatica and was wheelchair bound. It is common ground that Rita, who lived with her mother from 2009, was her principal carer; but there are issues as to the extent to which Nino and David assisted with the care for their mother up to November 2015, and as to Anna's perception of this. There is also an issue as to whether Rita changed the locks to the home at about that time, thereby preventing david and Nino from visiting Anna thereafter. Finally, there are issues as to whether Rita's evidence and case are compromised by a lack of candour on her part towards the solicitor who prepared a will for Anna in November 2015, towards her brothers in concealing the existence and the terms of that will during Anna's lifetime, and towards the court in this litigation.

6

Anna made her first will ( the 1986 Will) on 29 May 1986. It was a simple, one-page document, apparently prepared by a solicitor shortly after Anna's divorce. Having revoked all previous wills, it appointed Remo as the sole executor. It gave all of Anna's property to such of her four children as should survive her, if more than one in equal shares absolutely, subject to them surviving Anna by 28 days. There was no substitutionary gift in favour of the issue of any pre-deceasing child.

7

The defendants rely, by way of hearsay evidence, upon a witness statement, dated 23 June 2018, and signed, on her instructions, by her daughter, from Mrs Giustina Dutta, an Italian, then aged 84 and since deceased, who was a good friend of Anna for almost 60 years. Mrs Dutta asserts that Anna's English was not very good; and she confirms that she acted as translator (from English to Italian) for Anna when she executed her 1986 Will (although the attestation clause contains no reference to this).

8

Anna made her second, and purported last, will on 7 December 2015 ( the 2015 Will). It was prepared by a qualified, and experienced, solicitor, Mrs Savita Sukul (of SJS Solicitors, of Balham High Road SW12), who witnessed the will together with Anna's general practitioner, Dr Sajid Abdul Qaiyum (of Trinity Medical Centre, Balham High Road SW17). The 2015 Will was a much more elaborate document, extending to six pages. Clause 1 revokes all previous wills. By clause 2 Anna appoints Rita and Anna's niece, Angela Contucci (who formally renounced probate in August 2016), to be her executors and trustees. Clause 3 provides for the burden of inheritance tax. By cause 4 (headed ‘Funeral Directions’) Anna expresses the wish for Rita “to decide the directions of my funeral”. Clause 5 defines the expression ‘my Estate’. Clause 6 provides for Anna's trustees to hold the residue of Anna's estate upon trust to retain, postpone or sell it, and to pay any debts, funeral and testamentary expense, satisfy all the specific gifts referred to in the will, and deal with the residue of the estate as the will directed. Clause 7 contains a specific gift of Anna's house at 5 Brenda Road, Tooting Bec, London SW17 7DD ( 5 Brenda Road) to Rita absolutely “as she has taken care of me for all these years”, subject to the payment of any inheritance tax thereon. Clause 8 provides for the gifts of residue. Effectively, the residue of Anna's estate is to be divided into four equal shares, with each quarter share being paid to one of Anna's four children, with substitutionary gifts to issue in equal shares per stirpes, and with any failed share returning to residue and being distributed to the other beneficiaries pro rata according to their shares.

9

Clause 9 (headed ‘Trustee Powers’), and extending to six sub-clauses, contains (a) extended powers of maintenance and advancement, (b) a power of investment, (c) a power of appropriation, (d) a power of insurance, (e) a minor's receipt clause, and (f) a power to delegate. Clause 10 (headed ‘Technical Clause’) (a) incorporates the STEP standard and special provisions (2 nd edn) and (b) requires the estate to be divided as if any person who should die within one month of Anna's death had predeceased her. Finally, clause 11 (headed ‘Declaration’) provides as follows:

I DECLARE that my sons do not help with my care and there has been numerous calls for help from me but they are not engaging with any help or assistance. 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 1 have stated in this Will.

10

The defendants challenge the validity of the 2015 Will on the grounds of want of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny practised by Rita on Anna. Since none of the defendants was present when instructions were given for the drafting...

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1 cases
  • Rita Rea v Remo Rea
    • United Kingdom
    • Court of Appeal (Civil Division)
    • February 23, 2024
    ...COURTS OF ENGLAND AND WALES PROPERTY, TRUSTS AND PROBATE LIST (ChD) His Honour Judge Hodge KC (sitting as a Judge of the High Court) [2023] EWHC 1901 (Ch) Royal Courts of Justice Strand, London, WC2A 2LL Robert Deacon (instructed by Britton and Time Solicitors) for the Graeme Wood (instruct......
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