Donald David Land and The Estate of Mary Ann Land
| Jurisdiction | England & Wales |
| Judgment Date | 12 May 2006 |
| Neutral Citation | [2006] EWHC 2997 (Ch) |
| Docket Number | Claim Number: 4BM30334 |
| Court | Chancery Division |
| Date | 12 May 2006 |
[2006] EWHC 2997 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM
DISTRICT REGISTRY
Claim Number: 4BM30334
APPROVED FOR HANDING DOWN
Ms Nichola Preston (instructed by Bakewells) appeared on behalf of the Claimant.
Hearing 12 May 2006
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. The date on which this judgement is handed down is 13 July 2006
Date
The claimant is the only son of Mary Land ("the Deceased"), and the sole executor and beneficiary under her will dated the 2 nd April 1996 ("the Will"). On the 27 th April 2004 he was convicted on his guilty plea of the manslaughter of the Deceased. He was sentenced to a term of four years' imprisonment on the 21 st May 2004. There is a rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing. Section 2 of the Forfeiture Act 1982 ("the 1982 Act") empowers the Court to modify the effect of that rule. On the 2 nd August 2004 the claimant presented a claim to the Derby County Court for relief under section 2 of the 1982 Act, and it was issued the next day. Section 2(3) of the 1982 Act provides that
"… in any case where a person stands convicted of an offence of which unlawful killing is an element the Court shall not make an order… modifying the effect of the forfeiture rule…. unless proceedings for the purpose are brought before expiry of the period of three months beginning with his conviction".
The application was accordingly four working days out of time. When this came to the attention of Counsel and solicitors now acting for the claimant they successfully applied at trial to amend the claim to seek a declaration that the rule against forfeiture does not apply and in the alternative
"that an order be made for the reasonable financial provision of the Claimant from the net estate of [the Deceased] under section 2 of the Inheritance (Provision for Family and Dependants Act) 1975".
This is the adjourned trial of the amended claim.
Behind this bare recital of legally relevant facts lies a tragic story. These are the facts as I find them. The Claimant was an only child born on the 3 rd May 1948 and has lived at 7 Courtlands Rd., Etwall, Derbyshire (" the Property") since he was very young, at first with both parents and then (following the death of his father in 1995) alone with the Deceased. His education was limited. He has never had a girlfriend. He left school at 15 and has throughout his life worked as a labourer —with the County Council, with a civil engineering company, with the MoD and then with Plasplugs Ltd. In addition to his formal employment with that company he also worked as a gardener and odd job man for the company's managing director. In 2002 the Deceased (then aged 82) asked the Claimant to give up his job with Plasplugs Ltd and to look after her. He agreed. He then received a carer's allowance of £36 per week for which he was expected to provide 35 hours' care to the Deceased each week. He did so by doing all the work around the house, the shopping and cooking, generally managing the household and helping the Deceased with some of her personal needs. The Claimant and the Deceased never went out, save that sometimes on Boxing Day they would go to see an aunt (Mrs Shaw). The Claimant himself rarely went out except to visit his father's grave: he told a clinical psychologist in March 2004 that he had been out for a game of darts about 2 1/2 years earlier, that he had eaten out twice in two years, and that he had no friends other than Mrs Shaw (his aunt). In a report prepared for the criminal proceedings the clinical psychologist said (whilst emphasising that she was not providing a diagnosis)
"the more I have considered [the Claimant] since the assessment the more I feel it may be likely that he is suffering from some kind of developmental disorder".
I accept the accuracy of the picture presented to and presented by the clinical psychologist.
It was the prosecution case that the Deceased was a stubborn, domineering woman, hugely independent, and one who shunned any type of "officialdom" including doctors and home helps. The available evidence supports this assessment and I accept it. The clinical psychologist described the Claimant's relationship to the Deceased in these terms:-
"He had a mother who knew her own mind and so he had grown up knowing that what mother wanted mother got".
There was and has been no challenge to that description.
On the 4 th January 2004 the Claimant summoned an ambulance to the Property because his mother was not communicating and "was off in outer space": the Deceased was admitted to the Derbyshire Royal Infirmary. She was suffering from severe bed sores on her whole body, particularly an area from her shoulders to her legs. She had an horrendous sore at the base of her back measuring approximately 3 or 4 in. deep through which the sacrum was visible, described by the police surgeon as being "capable of taking two fists inside". It was clear she was suffering from breast cancer. Her wounds were consistent with her having been lying in one place for a period of time in her own excrement and urine, the net effect of which was to create a cocktail of chemicals which had infected her flesh. She was unconscious and so remained until her death two days later.
The Claimant was arrested and volunteered to be interviewed without the benefit of a solicitor. At interview it emerged that the Deceased had been examined by her GP in March 2002 in connection with an application for a care allowance (which examination appears to have raised no concerns, but produced no support). She had then suffered a fall in September 2003, had refused to go to hospital or permit a doctor to see her, and had taken to her bed. At her request she was provided with hot drinks, hot meals cooked for her by the Claimant, and whisky. By November she was suffering from bed sores, and the Claimant cleaned these with antiseptic wipes, and applied dressings. The Claimant did not ask the Deceased's GP to attend because he thought he could treat the sores himself. By mid-December the Deceased said that it was too much to roll over for the sores to be dressed, and the Claimant and she agreed to leave matters, so that the wound on her back was no longer attended to. When asked at interview why this course was taken the Claimant said:-
"I haven't really got an answer to say you know,I can't really say why I didn't do it. I should have done but I didn't…there is no reason at all it was my fault I suppose she's in the state she is in…I take responsibility of that"
There came a time when the Deceased refused to get up to go the toilet or to use the bucket provided for her. The claimant would shout at her telling her to go to the toilet but she would respond by saying that she would get up tomorrow. When the claimant tried to lift her she complained that it hurt. When asked at interview whether he did not think that he should have gone and got some professional help the claimant responded: "Probably I should have done, yeah". Sometime just before Christmas the Deceased fell out of her bed: she complained when the Claimant tried to lift her back in, and so he left her on the floor. In interview he said he did not think of asking anybody for help: "I don't like imposing on other people, which I should have done, I know". She ate her Christmas dinner sitting on the floor, and probably one further hot meal: thereafter she appears to have taken only whisky, and her condition declined to the state where she was on the edge of consciousness. That was the condition in which she was found by the ambulance crew. Asked at interview why he had allowed this to happen the Claimant said:
"I thought I was doing the best of my abilities to know…when I started…..I thought I was keeping the standard up….But according to that I sort of slackened off just these last few months haven't I?"
The Claimant was charged with manslaughter. The basis of a charge must have been manslaughter by gross negligence founded upon an indifference to an obvious risk of injury to health. The charge was never put to the jury (nor were they called upon to assess the Claimant's culpability having regard to the Deceased's attitude) because the claimant pleaded guilty at the outset.
The sentence passed was of four years' imprisonment. I do not have the sentencing remarks, but the judge plainly regarded this as a case of some seriousness.
If the forfeiture rule applies the Claimant cannot succeed to the estate of the Deceased in accordance with the Will and there is no point in his taking a grant. The Deceased's estate would become divisible (under the intestacy rules) amongst the children and grandchildren of her five siblings, of whom there were 26, the largest share being 6.66% and the smallest 0.24%. None of those entitled on intestacy applied for a grant of letters of administration. Accordingly the present proceedings were commenced against "The Estate of Mary Land deceased". On the 31st January 2005 District Judge Savage ordered that there should be served upon beneficiaries set out in a schedule to his order the claim form, the case summary prepared in the criminal proceedings, the claimant's witness statement, a medical report, the schedule of beneficiaries, a copy of his directions order, a copy of sections 1 and 2 of the Forfeiture Act 1982, and a response pack. He directed that any beneficiary wishing to be heard on the claimant's application for relief under the Forfeiture Act should respond to the Court. No beneficiary sought to be joined as a party to the action. Many did not reply. Some...
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