How to contest a will
Historically courts have taken a robust approach to protecting gifts contained in wills for the benefit of a charity. A number of recent cases suggest a change of approach towards charities. A notable case, which reflects these changing attitudes is the case of Gill and Woodall [2010].
A brief summary of the facts
Mrs Gill was married to Mr Gill (a farmer) and in 1945 they had their only child (Dr Christine Gill). In 1952 the family lived on Brookfields Farm. Dr Gill left home in 1968 and in 1975 Mr and Mrs Gill purchased an additional farm known as Potto Car Farm. Mr Gill worked both of the farms until 1987 and that year Mr and Mrs Gill sold Brookfields and moved into a property which they had built at Potto Car Farm. The previous year Dr Gill had married and she and her husband had purchased a derelict property known as White House Farm, together with 6 acres of land adjoining Potto Car. It was Dr Gill’s position that this was on the basis that she had been promised that one day she would inherit that farm.
Preparation of the wills
In April 1993 Mr and Mrs Gill appointed a solicitor to prepare their wills. Draft wills were prepared and sent to Mr and Mrs Gill at home, but there was no evidence to prove that Mrs Gill read the draft document. Subsequently Mr and Mrs Gill attended the solicitor’s office in order to execute those wills. The solicitor could not remember this occasion, but the court heard that the solicitor’s usual practice would have been to read out the wills to his clients. They would then have been signed in the presence of two witnesses. The signed wills were retained by the solicitor.
The wills provided that upon the death of the first spouse, their estate would pass to the other. Upon the death of the second spouse the remaining estate after funeral and testamentary expenses had been satisfied, was to be held on trust for the RSPCA in its entirety. The wills specifically stated “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 …”
Mr Gill died first and Mrs Gill passed away on 21 August 2006 at the age of 82. At the time of her death Potto Car Farm appears to have been worth well in excess of £1million. Upon learning of the contents of her mother’s will Dr Gill made it clear from an early stage that she was unhappy and ultimately proceedings were issued on the basis that her mother’s will was invalid.
The arguments advanced by Dr Gill
The main challenges by Dr Gill against the will were as follows:
- Although the will had been signed properly, Mrs Gill did not know or approve of its terms.
- If the above was not the case, Mrs Gill’s approval was obtained through the undue influence of Mr Gill.
- If that was not the case then the will was valid, but Dr Gill sought to enforce promises made to her by her parents, whilst they were alive, to the effect that she would benefit from their estate. She said that in reasonable reliance upon those promises she had acted to her detriment.
The High Court Proceedings
After a 15-day hearing the court concluded that Mrs Gill did know of and approve the contents of her will. However the court found that this approval had been obtained through the undue influence of Mr Gill. It further found that even if the will was valid, Dr Gill was entitled to inherit the farm on the basis of the promises that had been made to her. These findings resulted in Mrs Gill’s will being revoked and as a result she was treated as dying without having made a will. On this basis Dr Gill inherited the farm and did not need to rely upon the promises argument (even though she had succeeded upon that point in any event).
The judge reached his decision on the issue of knowledge and approval by applying a two-stage test. The first stage was considering whether Dr Gill had produced sufficient evidence to ‘excite the suspicion of the court’. On the basis of that test being satisfied, the second consideration was whether or not the evidence produced by the RSPCA was sufficient to allay those suspicions. The judge found that although there were suspicions these had been allayed by the RSPCA.
Following the Judgment in Dr Gill’s favour the RSPCA lodged an appeal. This was met by a cross-appeal of Dr Gill on the basis that she did not accept that her mother knew of or approved the contents of the will. This resulted in a detailed analysis by the Court of Appeal of the correct approach to be taken when deciding whether a person indeed knows and approves of the contents of their will.
The Court of Appeal and the approach to knowledge and approval
The starting point remains that where a will has been properly executed, after being prepared by a solicitor and read over to the person making the will, there is a very strong presumption that it is valid.
It was accepted that this particular case contained “very unusual facts”. The court accepted that the contents of the will did not represent Mrs Gill’s intentions. It was also accepted that the court had been correct to conclude that Dr Gill had established upon the evidence a suspicion that her mother did not know or approve the contents of her will when she signed it. However, it was not accepted that the RSPCA had managed to allay the suspicions, which Dr Gill had aroused.
In spite of this finding, the court was at pains to establish that this decision should not be seen as “green light to disappointed beneficiaries”. It was strongly emphasised that “the facts of this case were quite exceptional”. This was because Mrs Gill suffered from what was described as an “extreme version of a relatively unusual mental condition, which very severely affected her understanding and which would not even have been appreciated by most doctors, let alone a solicitor reading a draft will to her, especially if he had not met her before.”
From the evidence produced it appeared that the first time Mrs Gill would have met the solicitor was when she attended his office in order to sign the will. There was insufficient evidence to prove that prior to that appointment she had received and read a copy of the draft will at home. Due to her severe agoraphobia and panic disorder it was clear that she would have been “reluctant in the extreme” to attend the solicitor’s office (even if she attended with her husband). In the circumstances the expert evidence confirmed that “she would have been in a state of extreme anxiety, and, as a result, practically unable to take in anything the solicitor said to her, because she would have been so anxious to escape, and her mind would have been altogether dominated by that anxiety.” This is why it was found that although the will was signed by Mrs Gill she was not aware of (and therefore unable to approve) the contents of the document that she was signing.
Conclusions
This case is exceptional. It has been made clear by the court that the decision should not be seen as a green light to disappointed beneficiaries. The basic principle remains that a will, which on the face of it has been properly executed and read over to the person making it, is more likely than not to be valid.
Disputes between families and charities arise on a regular basis with many people considering contesting a will. It is fairly common when someone dies and their will includes a significant legacy to charity, that the relatives will be unhappy. However, both charities and donors could do more to prevent such disputes arising. Disputes of this nature could potentially be avoided if people discussed with their relatives how they intend to distribute their estates. If such plans were discussed there would be less surprise and shock, although no doubt there would still be disappointment.
Whilst some people take the view that charities lack compassion in family situations like the case of Gill, it is important to appreciate that charities are not entitled to simply give legacies away. In doing so they could potentially find themselves in breach of trust and obliged to make up any losses out of their own pocket.
