Inheritance Wars: The 95-Year-Old Mother, the Two Feuding Brothers and the House That Changed Hands

Jessica Schrader had two sons. Nick and Bill. They did not get on.

That is something of an understatement. When the dispute eventually reached the High Court, Nick described his feelings towards his brother using one word: hatred.

Their mother had made a will in 1990 which broadly treated the brothers equally. Then, in 2006, when Jessica was in her mid-90s, she made another will. This time the house went to Nick.

The residue was still divided between the brothers. But the house was by far the significant asset. The practical effect was that Bill lost what would otherwise have been half the value of the property — a half share worth somewhere between £110,000 and £160,000.

Bill challenged the will. He alleged lack of testamentary capacity, lack of knowledge and approval, and undue influence.

The first two challenges failed. The third succeeded.

That is what makes Schrader v Schrader so interesting. Jessica understood that she was making a will. She understood the document. But the court nevertheless concluded that it was not the product of her free will.

The family

Jessica Schrader had two sons: Walter Nick Schrader, known as Nick, and William Stephen Schrader, known as Bill. Her husband Walter predeceased her.

Jessica died on 21 January 2008, aged 98.

The house

The central property was Southend Farm House.

Jessica’s 1990 will did not specifically give the house to either son. It therefore fell into residue, so that in practice the value of the house was shared between Nick and Bill.

Then came the 2006 will.

The 2006 will

The later will was executed on 12 April 2006. Under it, Southend Farm House went outright to Nick. The residue remained divided equally between the brothers — but the residue was of little value compared with the house.

So the real effect of the change was this:

• 1990 will — house value: Nick 50%, Bill 50%
• 2006 will — house value: Nick 100%, Bill 0%

The money at stake

The judge recorded that the value of the half share which Bill lost was approximately £110,000 to £160,000.

The judge also observed that the brothers’ dispute had required a substantial probate action, and that aggregate legal costs were thought to be approaching £110,000. In other words, the legal costs were already approaching the value of the lower estimate of the disputed half share.

The brothers

The family relationship matters greatly here.

Nick believed that he and Bill had been treated unequally by their parents. The judge did not accept that perception as justified: Nick had made different choices over the years concerning land, property and cash. He nevertheless felt strongly that Bill had received better treatment.

There was also deep personal hostility. Nick alleged that Bill had behaved inappropriately towards both his first and second wives. Bill denied those allegations, and the judge did not need to decide whether they were true.

What mattered was that the hatred existed, and that Nick felt entitled to a greater share of the family property.

Inheritance disputes rarely begin when somebody dies. The argument may have started decades earlier.

Jessica’s age

When the new will was made Jessica was in her mid-90s. She was elderly. She had suffered a fall. She had become more dependent upon Nick for daily assistance.

But old age is not incapacity.

The capacity challenge

Bill argued that Jessica lacked testamentary capacity. The judge rejected that argument.

Mr Justice Mann found that Jessica remained alert, engaged, aware of current affairs, capable of giving clear instructions and able to understand what she was doing. The evidence from a number of witnesses supported the conclusion that she retained testamentary capacity.

95 is not a diagnosis.

The will writer

This part of the case repays close attention.

Jessica’s longstanding family solicitors had prepared the earlier wills. They were not instructed to prepare the 2006 will. Instead, Nick located a will-writing business and arranged for the will writer, Susan Marks, to attend Jessica.

Nick was not present when formal instructions were taken. Miss Marks asked Jessica whether she was under pressure or influence, and Jessica said she was not. Miss Marks subsequently arranged execution of the will, read it over to Jessica, and Jessica signed it.

The judge accepted that Miss Marks was reliable, aware of the requirements for capacity, and capable of identifying obvious concerns. However, he also observed that her process was somewhat procedure-driven. She did not keep a conventional detailed attendance note beyond her instructions form, and she did not fully explore the previous will, lifetime gifts, the family history, or the reasons for the dramatic change concerning the house.

The criticism was about the breadth and depth of the process and the absence of fuller contemporaneous records — not about honesty or competence.

“Are you being pressured?”

The will writer specifically asked Jessica whether she was being put under undue pressure or influence.

Jessica said no.

At first sight that sounds powerful. But the judge made an important point. If subtle undue influence is being exerted, the victim is hardly likely simply to answer “yes” when asked.

Asking “is anyone unduly influencing you?” is not a complete safeguard against undue influence.

Knowledge and approval

Bill also argued that Jessica did not know and approve the contents of the will. Again, he lost.

The judge was satisfied that instructions had been taken; that the will broadly reflected those instructions; that it was read to Jessica; that she executed it; and that she understood what the document did.

That creates the fascinating distinction at the heart of this case:

• Capacity? Yes.
• Knowledge and approval? Yes.
• Undue influence? Also yes.

If she understood the will, how could she have been unduly influenced?

Because these are different legal questions.

Capacity asks whether the testator had the mental ability necessary to make a will. Knowledge and approval asks whether the testator knew and approved the contents of the document. Undue influence asks whether the testamentary decision was truly free.

A person can understand a decision, understand the document recording it, and still have arrived at that decision because another person’s pressure has overborne their independent will.

Nobody saw it happen

There was no recording. No threatening letter. No witness standing in the room saying: I heard Nick force his mother to change her will.

That is normal in undue-influence cases. As the judge recognised, undue influence tends to occur when nobody is looking. So the court may have to decide whether it can properly infer coercion from the surrounding evidence.

The evidence board

The circumstantial factors the judge weighed

1. 1

   Jessica’s vulnerability

   She was in her mid-90s and had become more vulnerable following a fall.

2. 2

   Dependence on Nick

   Nick provided significant daily assistance, and Jessica would have been concerned about losing that support.

3. 3

   Change of professional

   The longstanding family solicitors were not used. A will writer with no previous knowledge of the family was engaged instead.

4. 4

   Nick arranged the will writer

   Nick located the will-writing service and facilitated the arrangements.

5. 5

   Interest in the will

   The evidence ultimately demonstrated greater involvement in considering the draft than Nick initially acknowledged.

6. 6

   A feeling of entitlement

   Nick believed he had been treated unfairly compared with Bill. The judge did not accept that perception as justified.

7. 7

   Hostility to Bill

   Nick described his feelings towards his brother as hatred. That was significant background.

8. 8

   The dramatic benefit

   The new will gave Nick the house outright, where the earlier will had left it to fall into residue.

9. 9

   Delay in disclosure

   After Jessica died, Nick did not disclose the new will to Bill for approximately six months, until steps were taken to administer the estate on the basis of the old will.

None of these facts alone proved undue influence. Together, the judge concluded that they did.

Simplified visual explainer

How the case unfolded

1. 1

   1990 — Jessica makes a will which broadly treats the brothers equally; the house falls into residue

2. 2

   Mid-2000s — Jessica, in her mid-90s, suffers a fall and becomes more dependent on Nick

3. 3

   12 April 2006 — a new will is executed, giving Southend Farm House to Nick outright

4. 4

   21 January 2008 — Jessica dies aged 98

5. 5

   Approximately six months later — Bill learns of the 2006 will

6. 6

   Bill challenges the will: capacity, knowledge and approval, undue influence

7. 7

   Capacity? Established — the challenge fails

8. 8

   Knowledge and approval? Established — the challenge fails

9. 9

   Undue influence? Established — the challenge succeeds

10. 10

    4–8 February 2013 — trial before Mr Justice Mann

11. 11

    11 March 2013 — the court pronounces against the 2006 will; the 1990 will governs the estate

Under the 1990 will the house fell into residue and was effectively shared between the brothers.

The old will returns

The court pronounced against the 2006 will. The earlier 1990 will therefore governed Jessica’s estate. That restored the position under which the house fell into residue and was effectively shared between the brothers.

Capacity is not the whole story

Families often assume that a will challenge turns entirely on whether an elderly person “had dementia” or “knew what they were doing”. Schrader shows why that is too simplistic.

Jessica had capacity. She knew what the will said. But the court nevertheless found that the decision reflected undue influence.

Mental capacity is not the same thing as freedom from undue influence.

Two elderly mothers. Two favoured children. Different results.

Rea v Rea — a mother left her home to the daughter who had cared for her. The other children alleged undue influence. The Court of Appeal held there was insufficient evidence of coercion. Result: will upheld.

Schrader v Schrader — a mother left the house outright to the son upon whom she had become dependent. The court inferred coercion from the whole evidential picture. Result: will invalid.

Dependence is not undue influence. Opportunity is not undue influence. Suspicion is not undue influence. But sometimes the circumstances together prove it.

Two further contrasts

The Dalton will dispute — the court found the later will invalid on multiple grounds, including undue influence. In Schrader, capacity and knowledge and approval were established, and undue influence alone defeated the will.

Gill v Woodall — a dominant husband and a surprising charitable disposition. There, the Court of Appeal ultimately resolved the case through knowledge and approval rather than undue influence. Schrader is the mirror image: knowledge and approval were made out, and the will still failed.

What this means in practice

If you are making a will which departs significantly from an earlier one, especially in favour of a family member on whom you depend, the practical protections are straightforward: use an experienced solicitor who knows the family history, explain the reasons for the change and record them, take instructions privately, and keep a full contemporaneous attendance note.

If you are the family member who benefits, the safest course is to keep your distance from the process entirely.

Where mediation fits

Once a testator has died, nobody can ask them what they meant. The court is left to infer. That inference process is expensive, slow and unavoidably uncertain — and in Schrader the costs were approaching the lower estimate of the sum in dispute.

Mediation cannot answer the legal question of whether a will was procured by coercion. What it can do is allow siblings to trade certainty for compromise, and to deal with the decades of grievance which the litigation itself will never resolve.

Related reading

• Rea v Rea: the daughter who cared for her mother
• The Dalton will dispute: dementia and undue influence
• Gill v Woodall: the £1 million farm left to the RSPCA
• Banks v Goodfellow: the man who saw devils
• How not to start an inheritance war
• The Inheritance Wars series

This article provides general commentary on Schrader v Schrader [2013] EWHC 466 (Ch), contested wills, testamentary capacity, knowledge and approval and undue influence in England and Wales. It does not constitute legal advice.