Estates & Trusts Decisions by John Delaney & Ted Crane
Gill v. RSPCA
In The High Court of Justice
Mr. James H. Allen, Q.C.
(Sitting as a Deputy Judge of the High Court)
Decision delivered: October 19, 2009
This case, from England, has become the subject of assorted commentary including an interesting article in the February, 2010 issue of Step Journal by Mark Keenan a partner and member of the Contentious Trusts & Probate Group of the law firm Mishcon de Reya, London, England. The Respondent, being a well known charity, has apparently come under some public scrutiny for fighting the case.
It concerns the issues of knowledge and approval of the contents of a will, undue influence and proprietary estoppel.
The Claimant was the lone daughter of farming parents. The father was a domineering bully, set in his ways and unwavering in his opinions and convictions. The mother’s mental state was the subject of much of the trial and decision. The Court accepted that she suffered from agoraphobia. She rarely left her house and rarely communicated with anyone other than her husband and daughter. She was substantially dependent on her husband. Her fear of losing that dependency was found to affect her ability for independent thought.
The mother and father had mirror wills, leaving everything to each other. The survivor’s estate went to the RSPCA. An explanatory provision in the brief wills confirmed that the Claimant was left nothing because she had been well provided for during their lives.
The wills were prepared by a lawyer that had no recollection of the mother and father or of the circumstances surrounding the planning, drafting or execution of the wills. He had no file and no notes of meetings. The Court accepted the evidence of the lawyer as to his standard practice in estate planning and further accepted that he had probed them as to their reason for excluding their daughter from their wills, which resulted in the explanatory provision being inserted in the wills. The Court further accepted that the lawyer would have mailed the draft wills for review in advance of signing, and at the time of signing would have read over the wills in their entirety and explained the meaning of each provision to them.
The Claimant was not estranged from her parents. The evidence was that both parents loved and cared for her and that she helped them out extensively around the farm. She was found to have made major life decisions of her own related to her education, work, marriage and residence based on her desire to be near and help out her parents on the farm, including the decision to purchase the adjacent derelict property which she and her husband renovated to become their home.
The father died first. After her mother’s death the Claimant sought to overturn her will.
Notwithstanding the mother’s extreme phobias, anxieties and insecurities the Court accepted that she knew and approved of the contents of the will.
Although the father died first and there was an opportunity for the mother to change her will before she died, the Court found that the mother was under such pressure from her husband to make the will that it overpowered her volition such as to make it contrary to her wishes. The pressure amounted to coercion and the will was set aside on the basis of undue influence.
An interesting aspect of the case is the Court’s alternative finding that even without undue influence there was sufficient evidence of assurances from the parents, which were relied upon to the detriment of the Claimant, that she would be left the farm after they both died, to apply the doctrine of proprietary estoppel. The Court concluded that the appropriate remedy would be the transfer of the farm and all associated farm property to the Claimant.
Mr. Keenan has, in his article, raised two interesting practice issues from this decision.
First, the need to be alert to potential challenges to a will make it good practice for lawyers to meet a husbandand wife separately when taking instruction for wills where there are unusual circumstances, including the exclusion of a close family member from the distribution of the estate. It is possible, though not a certainty, that the lawyer who took instructions in Gill could have discovered the undue influence being exerted upon the wife had he taken instruction separately. This is of course a departure from traditional practice, where husband and wife are seen together, give instruction together and sign together. Where there are no unusual circumstances the traditional practice may be sufficient.
Second, as our courts have repeatedly confirmed in the not too distant past, it is incumbent on lawyers to ensure that they compile and preserve meaningful attendance notes when meeting clients to draft wills, which need is magnified where there are unusual circumstances.
Of no less significance is the recognition that proprietary estoppel provides a potential ground to substantiate the claim for equitable relief of a disappointed beneficiary who has been left out of a Will. As such, practitioners need to ensure a thorough interview of any disgruntled beneficiary left out of a will to determine whether there are facts sufficient to ground a claim in proprietary estoppel.
This case comment was originally published in “Headnotes and Footnotes”, for the Manitoba Bar Association. It was valid and accurate as of the date it was submitted. © John Delaney 2009.