Gill v Woodall & Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Jackson |
| Judgment Date | 14 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1430 |
| Docket Number | Case No: A3/2010/0425 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2010 |
[2010] EWCA Civ 1430
Mr James Allen Q.C. Sitting as a Deputy High Court Judge
Before: Master of the Rolls
Lord Justice Lloyd
and
Lord Justice Jackson
Case No: A3/2010/0425
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
Elspeth Talbot Rice QC (instructed by Wilsons) for the Appellant, the RSPCA
Tracey Angus (instructed by Mishcon de Reya) for the Respondent, Dr Gill
The First and Second Defendants, Respondents, were not represented and did not appear
Hearing dates: 29 and 30 November 2010
Lord Neuberger MR:
This is an appeal brought by the Royal Society for the Prevention of Cruelty to Animals (“the RSPCA”) against a decision of Mr James Allen QC, sitting in the Leeds District Registry as a Deputy High Court Judge of the Chancery Division, revoking the grant of probate of the will of Joyce Gill (“Mrs Gill”), dated 27 April 1993.
An initial summary of the facts
In very summary form, the facts are as follows. Mrs Gill married John Gill (“Mr Gill”) in 1947 and their only child Christine (“Dr Gill”) was born three years later. From 1952, the family lived on Brookfields Farm near Girsby (“Brookfields”), which Mr and Mrs Gill owned and which Mr Gill worked. Dr Gill left home in 1968, and continued her education until 1979, when she obtained a doctorate, since when she has been a lecturer at Leeds University.
In 1975, Mr and Mrs Gill purchased Potto Carr Farm near Northallerton (“the Farm”) and Mr Gill worked both farms until 1987. In that year Mr and Mrs Gill sold Brookfields, and moved into a house which they had built on the Farm.
In 1986, Dr Gill married a fellow lecturer, Andrew Baczkowski, and, in the same year, she and her husband purchased White House Farm (“White House”), which consisted of a derelict house and some six acres of land adjoining the Farm. Mr Gill contributed about 40% of the purchase price of White House, Dr Gill and her husband paying the balance. Dr Gill and her husband have one child, Christopher, who was born in 1997.
In or before the middle of April 1993, Mr Argyle, a partner in the solicitors firm of Hunt & Wrigley in Northallerton, was instructed to prepare wills for Mr and Mrs Gill, in matching terms. After the two draft wills had been prepared, Mr Argyle sent them to the Farm. Thereafter, on 27 April 1993, Mr and Mrs Gill attended at Mr Argyle's office for the purpose of executing their respective wills. The Judge concluded that, although Mr Argyle could not remember acting for or advising Mr and Mrs Gill, in accordance with his usual practice he read out their wills to them, whereupon each will was duly executed, and witnessed by two secretaries. The wills were then retained by Mr Argyle until after Mrs Gill's death.
Each will was just over a page in length and contained six clauses. By clause 1 of her will (“the Will”), all Mrs Gill's property was left to Mr Gill, provided that he survived her for one month, and he was appointed executor. Clause 2 stated that clause 1 would not apply if Mr Gill died within a month of Mrs Gill, and the ensuing three clauses would apply instead. By clause 3, two partners of Hunt & Wrigley were appointed executors. Clauses 4 and 5 were in these terms:
“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.
Mr Gill died in April 1999, aged 82. His will was never proved, and there was no formal administration of his estate. Mrs Gill died on 21 August 2006, aged 82. On 16 April 2007, probate was granted to two partners of Hunt & Wrigley, Mr Woodall and Mr Lonsdale, in accordance with clause 3 of the Will. At the time of her death, the Farm appears to have been worth well over £1m. Dr Gill made it clear from an early stage that she was unhappy with the terms of the Will, and in due course began the present proceedings.
The issues at first instance and in the court of Appeal
Although the precise nature of Dr Gill's case changed or widened from time to time after the death of her mother (not least following a change of solicitors), Dr Gill ultimately raised three arguments as to why she should be entitled to the Farm. Those arguments were:
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.
After a hearing lasting some fifteen days and listening to over twenty witnesses of fact and two expert witnesses, Mr Allen QC in a very long reserved judgment which considered the substantial evidence and almost all the arguments in some detail, concluded that:
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.
Accordingly, while the RSPCA won on the first issue, Dr Gill won on the second and third issues. Because Dr Gill won on the second issue, the Will was revoked. As a result, Mrs Gill was treated as having died intestate and Dr Gill inherited the Farm, so that she did not need to rely upon the estoppel point, although the Judge found for her on that issue also.
With the permission of the Judge, the RSPCA now appeals against his conclusions that Mrs Gill executed her will under the undue influence of Mr Gill, and that, if the Will is not revoked, Dr Gill is entitled to the Farm on the grounds of proprietary estoppel, and Dr Gill cross-appeals against the Judge's conclusion that Mrs Gill executed the Will with knowledge and approval of its contents.
Having considered the clear and concise skeleton arguments prepared on behalf of the RSPCA and on behalf of Dr Gill, we concluded that we should hear full oral submissions on the first two issues, and then decide whether it was necessary or appropriate to hear oral submissions on the estoppel issue. After one and a half days of very well argued submissions, we concluded that it would involve unnecessary costs and court time if the parties developed their respective cases on the estoppel issue, because we considered that the Judge's decision to revoke the Will should stand. Accordingly, we indicated the outcome of the appeal, explaining that we would give our judgment later.
Knowledge and approval: the law
Mrs Talbot Rice QC, who appeared on behalf of the RSPCA, contended that it was logical first to consider the question of undue influence, and only then turn to the issue of knowledge and approval. However, I agree with Ms Angus, who appears for Dr Gill, that the Judge was at least entitled, and, at any rate in this case, right to consider knowledge and approval first, and only then to turn to undue influence. That approach seems to me to be consistent with what was said by Lindley LJ in Tyrrell v. Painton [1894] P 151, 157. After referring to Barry v Butlin (1838) 2 Moo PC 480, where Parke B discussed “circumstances that ought generally to excite the suspicion of the Court”, Lindley LJ went on to say:
“[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.”
Knowing and approving of the contents of one's will is traditional language for saying that the will “represented [one's] testamentary intentions”—see per Chadwick LJ in Fuller v. Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the Will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will.
In Fulton v. Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that
“When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon...
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