The Judgment in James Anthony De Jong v Derek and Ian Seager was handed down by His Honour Judge Parfitt in Central London County Court on 18 June 2019 following a three-day trial.
The case has attracted media interest and has already been reported in The Times, The Evening Standard and The Daily Mail.
The case concerned the disputed Will of Ada Richards, who died on 15 September 2011 at the age of 92.
Factual Background
The deceased’s nephews, Derek and Ian Seager had not seen their aunt since the 1950’s when they were little boys. Their mother and the deceased sister, Renee, lost touch with Ada after they moved away from London. The Seagers’ alleged that Ada’s Will which vested her entire estate (worth approximately £1.6 million including a house in Highgate, London as well as cash savings) to James de Jong (“Tony”) was invalid as Tony had procured the Will by undue influence. They claimed that Ada had only given her estate to Tony as he forced her to believe that if she did not make a Will in his favour that he would not look after her anymore. If they proved this point, HHJ Parfitt agreed that he would have to set aside the Will.
Tony claimed that Ada had freely made her Will in May 2010 which was witnessed by a retired barrister, Mr Peter Thompson and Ada’s general practitioner, Dr Waveney McIntyre.
Tony stated that he had cared and looked after Ada’s husband, Richard, who had died in 1992. Tony had been friends with both Richard and Ada since 1974. He had promised Richard whilst caring for him that he would also care for Ada when she needed care. After a fall in 2007 Tony began to regularly care for Ada on an unpaid basis. He moved into Ada’s house as a full-time carer for Ada in 2008. It was not disputed that Tony provided satisfactory care to Ada over several years.
Tony’s evidence was that Ada had not wanted to include her family in the Will as they had ostracised her following her marriage to Richard, who was of Fijian descent.
On 22 September 2010 a neighbour, Mr Krohn, witnessed an alleged assault by Tony against Ada through the window. He recorded some of the scenes on his mobile phone. This was reported to social services at Harringay Council and the police. Tony was arrested for assault and Ada was taken to hospital and then into a nursing home. She never went back to her own home. Tony denied any wrongdoing and following a trial, he was acquitted of all charges on 29 March 2011.
The Seagers’ case hinged on what Ada apparently told her GP, the ambulance service and social services after the alleged assault, which was that she wished she had not signed the Will and she had been under the impression that she had to sign the Will or Tony would cease caring for her.
Despite the apparent change of mind by Ada, social services failed to obtain any formal revocation of the Will. There are various ways in which a Will may be revoked, these include marriage, signing a new Will, or codicil or pursuant to the Wills Act 1837 by physical destruction. Ada’s health and mental capacity deteriorated whilst in care and she was unable to give any further instructions in respect of her wishes. She passed away in care in September 2010.
Ada’s ashes were scattered around a rose bush in her garden as her husband, Richard’s, had been before her.
The Seagers’ were only alerted to Ada’s death after they had been contacted by a heir hunting firm tracing potential beneficiaries. Tony had also not been aware of the death until 2013 having been asked to leave Ada’s home and not to contact her by social services following the alleged assault charges against him.
Findings
HHJ Parfitt found that Tony had been “over-aggressive and disrespectful” to Ada on the night of the alleged assault. Also, that following this incident Ada had “changed her mind” about her Will in view of what she had said, in particular, to her GP. However, he found that Ada’s original intent was found in the Will she executed in favour of Tony in May 2010 and that this Will had not been revoked. He accepted the evidence of the witnesses that they acted “professionally” and “took reasonable steps to satisfy themselves that she was acting of her own free will” when the will had been executed. Accordingly, HHJ Parfitt found that the Will in favour of Tony was valid.
Opinion
The case is a reminder that families have a high burden of proof when alleging undue influence as a means of setting aside a Will. The legal principles are set out in Edwards v Edwards and others (2007) EHWC 1119 (Ch). In essence, the Court will be concerned on the balance of probabilities with regard to the factual circumstances as to whether the Will was executed under undue influence either by coercion or by fraud. It is for the party who asserts undue influence to prove it. Coercion is pressure that overpowers the testator and is to distinguish from mere persuasion. Executing a Will for the sake of a quiet life is sufficient. The physical and mental strength of the testator is relevant as the Will of a weak and ill person is more likely to be overborne. It is not for the Court to determine what is fair as a testator may dispose of an estate as he or she wishes. The crux of the determination by the Court is whether the Will was executed under the testator’s own free will who understood the contents and was acting as a free agent.
The case also reminds us that an intention to change a Will is not enough to prove revocation of a Will. There must be a formal revocation of a Will by either marriage, a new Will or codicil or by physical destruction as set out under the Wills Act 1837.
Media
Existing press coverage of this case can be found at:
The Daily Mail
The Times
Our Team
Lawcomm Solicitors are a modern law firm for business and private individuals with offices in Whiteley and London. The Litigation and Dispute Resolution Team at Lawcomm Solicitors acted for the successful Claimant, James Anthony De Jong. The team is headed by Bill Dhariwal (Solicitor and Director) who was assisted by Albert Escorcio (Senior Litigation Executive), Sarah Lightfoot-Webber (Chartered Legal Executive) and Sam Hook (Legal Assistant).
For further information about this case or about the work undertaken by Lawcomm Solicitors in respect of contested Wills and probate, please do not hesitate to contact:
Note
The above case summary is for information purposes only and does not constitute legal advice. Copyright in all materials vests in Lawcomm Solicitors.
