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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gill v Woodall & Ors (Rev 1)  EWCA Civ 1430 (14 December 2010)
Cite as:  3 WLR 85,  EWCA Civ 1430,  WTLR 251,  NPC 126,  Ch 380
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY
MR JAMES ALLEN Q.C. SITTING AS A DEPUTY HIGH COURT JUDGE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE JACKSON
| CHRISTINE ANGELA GILL
|- and -
STANLEY ANTHONY LONSDALE
| Defendants Respondents
|THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
The First and Second Defendants, Respondents, were not represented and did not appear
Hearing dates: 29 and 30 November 2010
Crown Copyright ©
Lord Neuberger MR :
An initial summary of the facts
"4. I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate unto my Trustees UPON TRUST that they shall sell call in and convert the same into money with power to postpone the sale calling in and conversion thereof for so long as they shall in their absolute discretion think fit without being liable for loss and shall with and out of the proceeds of such sale calling in and conversion and my ready money pay my funeral and testamentary expenses inheritance tax and debts and shall hold the residue UPON TRUST for the RSPCA of the Causeway Horsham West Sussex RH12 1HG absolutely AND I DIRECT that the receipt of the Treasurer for the time being of the RSPCA shall be a sufficient discharge to my trustees………
5. I DECLARE that no provision is hereby made for my daughter Christine Angela Baczkowski because I feel she has been well provided for by me over a long period of time……."
Clause 6 contained a charging clause in favour of a solicitor executor.
The issues at first instance and in the Court of Appeal
i) Although the Will was properly executed, Mrs Gill did not in fact know or approve its terms;
ii) If that was wrong, Mrs Gill's approval was obtained through undue influence on the part of Mr Gill;
iii) If that was wrong, then the Will was valid, but she claimed the Farm on grounds of proprietary estoppel.
i) Mrs Gill knew and approved of the contents of the Will;
ii) However, her approval had been obtained through the undue influence of Mr Gill;
iii) If the Will was valid, Dr Gill had made out her claim to the Farm on the basis of proprietary estoppel.
Knowledge and approval: the law
"[W]herever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will."
"When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator".
This view was effectively repeated and followed by Hill J in Gregson v. Taylor  P 256, 261, whose approach was referred to with approval by Latey J in In re Morris deceased  P 62, 77F-78B Hill J said that "when it is proved that a will has been read over to or by a capable testator, and he then executes it", the "grave and strong presumption" of knowledge and approval "can be rebutted only by the clearest evidence." This approach was adopted in this court in Fuller  1 WLR 1097, para 33 and in Perrins v Holland  EWCA Civ 840, para 28
Knowledge and approval: the correct approach
"consider all the relevant evidence available and then, drawing such inferences 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."
Was the Judge right to find a prima facie case of no knowledge and approval?
"1. The gift of the residue to the [RSPCA] in the light and context of Mrs Gill's view of and attitude towards the [RSPCA] expressed and displayed during her life time;
2. The non-provision by the Will … for [Dr Gill] given that [Dr Gill] is the only child of Mrs Gill and given the nature and extent of their relationship when Mrs Gill was alive, the care and support provided by [Dr Gill] to Mrs Gill;
3. The fact that for 20 years or more prior to April 1993, [Dr Gill], and from 1987 onwards Dr Baczkowski, provided unpaid labour at Brookfields … and the Farm, which labour was substantial;
4. The gratitude expressed by Mrs Gill for [Dr Gill]'s help and assistance;
5. The level of financial provision and the value of the gifts made to [Dr Gill] by Mr and Mrs Gill;
6. The expenditure made by [Dr Gill] and Dr Baczkowski on the purchase of White House … and in the rebuilding of the house thereat;
7. The fact that the Farm was the only asset of Mr and Mrs Gill of any substantial value in 1993;
8. Mrs Gill's intention that the Farm would not be sold but would be enjoyed by future generations. The assurances and statements made by Mrs Gill to [Dr Gill] to the effect that she would inherit the Farm, which assurances she intended [Dr Gill] to rely upon and which [Dr Gill] did rely upon to her substantial detriment, the assurances of Mr Gill, and the conduct of both Mr and Mrs Gill illustrative of their intention to leave the Farm to [Dr Gill];
9. Mrs Gill having suffered from a severe anxiety disorder, agoraphobia, which meant that she feared leaving the Farm, of being left alone at the Farm and of social contact with strangers;
10. The fact that away from the Farm, and in the presence of strangers, the degree of anxiety suffered by Mrs Gill could be severe and, when so, it was likely to have inhibited her ability to concentrate and absorb information;
11. At the meeting with Mr Argyle on 27 April 1993, Mrs Gill would have experienced severe anxiety, the degree thereof being at least 8 on a scale of 0 to 10, where 10 is the most severe. That anxiety would have impacted on her ability to concentrate upon what was being said to her by Mr Argyle. If the meeting on 27 April 1993 was the first and only time Mrs Gill had given consideration to the terms of her will, and if Mr Argyle had read over to Mrs Gill the will from top to bottom without further explanation, it is unlikely she would have been able to take in the entire words spoken and the effect thereof, in particular the provision for the [RSPCA] and the consequences thereof;
12. After April 1993, Mrs Gill's words and conduct were consistent with her anticipating that her family would inherit the Farm."
"Seeing a solicitor, even with Mr Gill being present, would have been outside the set of situations within which Mrs Gill would have been expected to have been able to prevent the emergence of severe anxiety symptoms. This would be likely to have materially affected her ability to concentrate upon and digest what was being said to her during such a meeting and her relationship, of absolute dependence upon Mr Gill, would have made it very difficult for her to express a wish to make a will that was different to the one the he wished her to make."
"her degree of anxiety would, at the very least, have been comparable to that experienced by most people when they are frightened or upset in a stressful situation that they would otherwise try to avoid. … Mrs Gill's thoughts would have been dominated by an impulse to escape back to the safety of home, she would probably have felt on the edge of panic. Such anxiety would most probably have affected her ability to concentrate, to take in and to commit to memory material that was presented at the meeting. … Mrs Gill would have been most likely to have actively done whatever she could to bring the meeting with the solicitor to a conclusion so that she could return home with her husband… . She would also have tried to do what she could to delegate as much as possible of her involvement in the meeting to Mr Gill."
i) The Judge concluded that, if Mrs Gill, having "had the Will read out to her, [was] asked if she was happy with it and to sign the same, she would have experienced anxiety of such severity that her thoughts would have been dominated by an impulse to escape back to the safety of her house and she could not have followed or understood what she was doing or known or understood the terms and effect of her will";
ii) The experts agreed that "if the knowledge of the legacy to the RSPCA had been incorporated and processed in [Mrs Gill's] working memory it is most likely that it would have been transferred to her episodic memory and that she would have been able to recall this six years later".
iii) The fact that Mr Argyle (and indeed none of the doctors who saw Mrs Gill, including her GP) did not notice any symptoms of her acute mental distress, does not cast doubt on these conclusions. Professor Howard had carried out research which established that, when visited by patients suffering from acute agoraphobia, GPs normally did not appreciate that the patient suffered from such a condition even when it was acute.
Was the Judge right to conclude that the prima facie case had been rebutted?
i) On a date prior to 27 April 1993 (when they executed their wills), Mr and Mrs Gill attended at Mr Argyle's offices for the purpose of instructing him to prepare their wills;
ii) Following that meeting, and the preparation of the wills, Mr Argyle sent the draft wills to Mr and Mrs Gill at the Farm, and Mrs Gill saw and read the draft Will in her home before she went to Mr Argyle's offices to sign it;
iii) When Mr and Mrs Gill went to Mr Argyle's offices on 27 April 1993, he "did not simply read out the Will from top to bottom". He "read each clause separately, he broke down the Will into separate bits of information and he checked whether Mrs Gill had any queries in relation to each bit of information".
Lord Justice Lloyd
"If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say that he did understand what he was doing and its effect"
"Doctors break down the information into little chunks and check with the patient that they understood what was being said to them by the doctor before he moved on to the next matter."
Lord Justice Jackson