Knowledge & approval – Gill v RSPCA [2009] EWHC B34 Gill v Woodall [2010] EWCA Civ 1430

 In Wills

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Dr Christine Gill received much publicity in her fight to have her mother’s Will set aside. She succeeded at first instance and as a result inherited the family farm estimated to be worth £2.1 million. The Judge decided the case on the basis of undue influence and the RSPCA appealed. The Court of Appeal unanimously declined to accept the basis of the finding on 14 December 2010 in favour of Dr Gill but supported her cross-appeal and so supported her case but decided it on a different basis.

The facts

Joyce Mary Gill (the deceased) made mirror Wills with her husband, a typical Yorkshire farmer, on 27 April 1993. The case was unusual because Mrs Gill was heavily affected by what was determined by the Court, on conflicting medical evidence, as agoraphobia. As a result she was shy in the extreme in dealing with strangers and was unable, rather than chose, to travel outside her comfort zone of home and the car without the support of either her husband or Dr Gill, her only child. The situation was complicated further by the fact that on the evidence of many people Mr Gill was a domineering bully whose views were followed by the deceased whether or not she agreed with them.

The question of her being able to make a decision about the wording of her Will made in the presence of her husband in front of a solicitor and at his office was debated. James Allen QC sitting as a deputy judge in the High Court decided that she would have been so anxious to escape from the solicitor’ s office to the comfort of her own home that she would not have been able to focus on what was being said nor recall the outcome.

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The fact that the mirror Wills therefore let everything to each other on the first death but then left the whole estate on the second death to the RSPCA was extraordinary given the extent of the care and support which Dr Gill had provided to her parents during their joint lives and particularly to the deceased following Mr Gill’s death in 1999.

The solicitor who prepared the Wills no longer had access to the Will file as it was the firm’s practice not to retain Will files for longer than 10 years. However, he explained his usual procedure when instructed to exclude a close relative from benefit was to ask whether the reason was financial (i.e. they had been helped sufficiently during the testator’s lifetime) or personal. His secretarial staff who witnessed the Will confirmed this was his usual practice. The Wills were drafted with the following clause at paragraph 5:

“I DECLARE that no provision is hereby made for my daughter because I feel that she has been well provided for by me over a long period of time.”

The first instance findings

In a long report the Deputy Judge outlined the law relating to undue influence in respect of Will making. He confirmed there was no presumption of undue influence but rather it was up to Dr Gill to prove on balance of probabilities that the Will executed by the deceased because of coercion.

He found that:

  • The deceased was a shy & timid person
  • She suffered from agoraphobia, with symptoms of severe anxiety
  • She was very dependent upon Mr Gill and concerned not to lose his support
  • She feared his loss of temper and outbursts of fury and the consequences to her and his health
  • She deferred to him
  • She sought to avoid confrontation by doing what he wished
  • Mr Gill was a domineering, determined, stubborn, self-opinionated man who was prone to losing his temper quite easily. He was a bully and could act disproportionately and at times perversely
  • Mr Gill ran the farm as he wished without any participation of the deceased
  • The Gill’s cultural backgrounds and attitudes were such that Mrs Gill would defer to him particularly in relation to business and financial matters
  • Dr Gill was their only child and the Will totally disinherited her
  • There was a loving and caring relationship between the deceased and Dr Gill
  • The tradition in Yorkshire farming families of the farm being left to the next generation of which the deceased’s approved or at least recognised
  • The existence of a grandson Christopher and his future
  • The deceased’s avowed dislike of the RSPCA.

Whilst it therefore remains a mystery why Mr Gill wanted to disinherit his daughter the Court decided that it was his undue influence which caused the deceased to make the mirror Will and therefore it was set aside.

For good measure the Court considered whether there was in fact knowledge and approval of the Will which was signed and despite the medical evidence the claim for want of knowledge and approval failed as the RSPCA was able to discharge its burden of proof given the approach of the solicitor in the preparation of Wills was to:

  • Take instructions
  • Draft Wills based on those instructions and send the drafts to the parties at home with a covering letter inviting them in to discuss and if appropriate sign them
  • At his office to read each clause of the Will out loud and explain it and ask if that was clear and understood
  • If so, to arrange for the Will to be signed in the presence of two members of staff.

The Court of Appeal decision

The Master of the Rolls, Lord Neuberger, emphasised on appeal by the RSPCA, that the Court of Appeal should only overturn the Judge’s decisions if he erred in law; because it was a very well established principle that the Court of Appeal does not lightly interfere with findings of fact made by a trial judge. Before overturning a finding of fact the Court of Appeal has to be satisfied that the trial judge reached a conclusion that he could not reasonably have reached, or made findings which were not open to him on the evidence, or made some other fundamental error which vitiated his finding.

Lord Neuberger felt the correct approach to the question of knowledge and approval was that stated by Latey J in Morris [1971] P 62 namely that the court should:

“consider all the relevant evidence available and then, drawing such influences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the Will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.”

Therefore by a unanimous decision the Court of Appeal concluded that the Judge would not have made the decision he did about knowledge and approval on the unusual facts of this case if he had correctly assessed the evidence against his three key points which were:

  1. that the Gills had both attended a meeting with Mr Argyle at the solicitor’s office in order to give instructions – there was no evidence that this had occurred and given the nature of Mrs Gill’s anxiety it was highly likely that any such meeting would have simply been between Mr Gill and Mr Argyle as the latter admitted he was happy to take instructions for a Will from either spouse on behalf of the other.
  2. that the draft Wills, which were sent to the farm under the cover of a single letter in a single envelope, were read independently by both Mr and Mrs Gill – the medical evidence suggested that if Mrs Gill had read the draft Will in the comfort of her own surroundings she would have remembered its terms and may have questioned the lack of provision for her daughter. In fact when she was asked by Dr Gill about the contents of her Will she only said that they had each left their estates to the other and no mention was made of the gift on the second death to the RSPCA. It was therefore not correct on the evidence to assume that Mrs Gill had in fact read the draft Will and appreciated this was the effect of it.
  3. that Mr Argyle read over each clause of the Wills at the meeting at his office on 27 April 1993 and Mrs Gill acknowledged it was in accordance with her wishes – the oral evidence of Mr Argyle was in fact quite clear – that his usual practice was to read the whole document over before asking if the client was happy with it, and it was not his usual practice to read it over clause by clause establishing that each was understood and approved before moving on to the next. It was likely, given the extreme nature of Mrs Gill’s affliction which was evidenced in the medical testimony, that he would not have known the level of anxiety under which she was functioning and the inability for her in that state to take in the whole document at one go and make any kind of recollection of it or acknowledge its effect even less give more than tacit approval to it.

Therefore, the Judge would not have come to the conclusion he did about knowledge and approval for the three reasons he gave if he had scrutinised the evidence in the way he should.

The Court of Appeal therefore upheld Dr. Gill’s cross appeal against the Judge’s decision that Mrs Gill had knowledge and approval of the Will and dismissed the appeal by the RSPCA on the grounds of undue influence; the question of proprietary estoppel was not considered.

The Master of the Rolls was at pains to emphasise that this outcome was not a green light to disappointed beneficiaries to challenge a Will where it has been read over to the testatrix or to appeal a full and careful first instance decision upholding a Will’s validity. The facts were wholly exceptional because Mrs Gill suffered from a fairly extreme version of a relatively unusual mental condition which severely affected her understanding and which would not have been appreciated by most doctors let alone a solicitor reading a draft Will to a testatrix.

The Court of Appeal did not agree with the Judge that Mr Gill had unduly influenced Mrs Gill to leave the farm to the RSPCA because it had concluded that Mrs Gill did not know that she was doing such a thing.

The claim for proprietary estoppel which was considered by the judge in case there was an appeal and a higher court overturned the Judge’s finding of undue influence was not considered at all.

Practice points

What should solicitors do when acting for a married couple or civil partners?

  • Ask if either party is suffering from any health problems and try to ascertain the effect of these before proceeding.
  • Take instructions from each separately?
  • Ask open questions and establish whether each party in mirror Will cases are independently of the same mind; although it was accepted in this case that this would only have exacerbated the deceased’s anxiety if she had had to see the solicitor on her own and not with her husband?
  • Send separate draft Wills in separate envelopes with separate letters of explanation to each spouse or civil partner?
  • If it was known that Mrs Gill suffered from such extreme anxiety should the solicitor have offered to go to the farm to see her there?
  • Should solicitors, as a matter of course, always go through Wills clause by clause to ensure understanding rather than reading through a complete Will in order to help a client of whatever ability to deal with manageable chunks of information?

© Gill Steel LawSkills Ltd

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