Sometimes people make decisions which others cannot accept or understand and which can appear harsh or cruel.
This case is a sombre illustration of decisions made following a family breakdown. It shows how, where a person has the required mental capacity and understands what they are doing, they are completely free to make a Will in terms which others may find difficult to accept.
Personal background - Norman Walter Gill deceased
The Deceased (“Norman”) was born on 24 January 1935. In 1964 he married Mary and the couple had three children together: Jessica, Marcus and Elizabeth. Mary had a son from a previous relationship (Julian). Marcus and Elizabeth did not have any children. Jessica had two: Natasha (born 1 December 1995) and Tom (born 19 April 2006). Julian had a son Harry (born on 13 April 1995).
Norman was a successful businessman. However, in 1979 he was charged with (and pleaded guilty to) conspiring to murder Mary. Rather than imprisonment he was hospitalised and released in July 1980. In December of that year in support of Norman’s application for a shotgun licence, his treating consultant found that Norman had suffered from “a significant psychiatric disturbance which was accepted as mitigation by the Court.” It was further found that he was “…an ambitious, energic and at times ruthless man, who could also be over-sensitive, emotional and prone to jealousy. A combination of personality, the deaths of his father and close friend, depression of mood, marital difficulties, failure in business, alcohol dependence and drug abuse led to a paranoid state of a psychotic nature, which principally manifested itself as a morbid jealousy syndrome. By the time of his Court appearance, he had already responded satisfactorily to treatment and it was accepted that the constellation of emotional, behavioural and social circumstances was so unlikely to recur, that such an offence would not be repeated”. Mr Gill was found to be a fit person to hold a shotgun licence.
Norman rebuilt his life and was financially successful.
Family relationships
He had no significant relationship with Julian from 2009.
In 2009 Norman wrote to his daughter Elizabeth making it clear that her presence would not be expected or allowed at his funeral.
On 8 September 2010 Norman created a discretionary trust known as the Gill Welfare Family Trust (the “Family Trust”). Jessica, Marcus and their children were named as discretionary beneficiaries, but not Elizabeth or Julian. Later that month Norman executed a Will leaving his residuary estate (understood to be worth in the region of £2m) to the Family Trust. A Memorandum of Wishes stipulated that the Family Trust was to be used for the purposes of education, medical care and welfare of the beneficiaries.
During August 2013 Norman wrote in unpleasant terms to Marcus who responded to the effect: “I am saddened to learn that you no longer consider it worthwhile to maintain an ongoing relationship with me…” “I feel that this is indicative of the lack of value which you ascribe to me, as an individual, and to the relationship we had. However, I shall of course respect your decision and it therefore only remains for me to thank you for past assistance, to wish you well for your twilight retirement…”.
In November 2013 Norman wrote to Jessica and her husband stating: “…I am not only hurt and disappointed but very, very, offended, so I am informing you that you have lost the “war” in that I have now terminated our one-sided relationship, I say this as for many years I have aided you financially and been supportive about your medical/educational/transport and domestic problems”. He made it clear that the Family Welfare Trust had been “scrapped” and that his Will was being adjusted to exclude all four of his children. He commented “…I feel I have subscribed enough to getting you all a degree of security and reasonable lifestyles appropriate to your abilities/inabilities…”
It was clear that by the end of 2013 Norman’s relationship with his children had effectively broken down and he made it clear that he did not want direct contact with any of them.
The Will
On 22 April 2015 Norman made a Will (the “2015 Will”). In spite of the breakdown in relationships Norman made pecuniary legacies of £175,000 each to Jessica, Marcus, their respective spouses and Elizabeth and to the grandchildren (Natasha, Tom and Harry). There were additional pecuniary legacies to his assistants, friends and associates. The residuary estate was left to the trustees of the Family Trust.
In 2016 and 2017 Norman tried to re-establish a relationship with Marcus and Jessica. This was not successful. On 15 February 2018 Norman made a new Will (the “2018 Will”). He gave £5,000 to each of his children, but nothing to any of the grandchildren. Substantial pecuniary legacies were given to extended family members, friends, assistants, associates and carers (in the region of £2m). The residuary estate (estimated at £4m) was left to the Charitable Trust created in 1992. The purpose of the Charitable Trust being to benefit the people of the city and county of Leicester.
On 30 March 2018 Norman suffered a stroke and died. His net estate was valued at approximately £5.3m.
Response of the family
Marcus and Elizabeth accepted the validity of the 2018 Will by way of a Settlement Deed, but preserved the right to pursue a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
On 8 December 2020 the Claimants (the Trustees of the Charitable Trust) issued proceedings seeking a Declaration in solemn form as to the validity of the Will.
A Defence and Counterclaim was lodged by Jessica on the basis that the estate should be administered in accordance with the terms of the 2015 Will. She alleged that Norman lacked testamentary capacity and/or did not know and approve the contents of the 2018 Will. She argued that:
- The 2018 Will was not rational by excluding or significantly excluding the children and grandchildren;
- Norman suffered a personality disorder diagnosed in 1979, which had poisoned his natural affection for his children and grandchildren;
- When the 2018 Will was made Norman was elderly and terminally ill. He also suffered with heart failure, sleep disorder and frailty. These afflictions together with medications adversely impacted his decision-making;
- The Will writer failed to take proper instructions or to take adequate measures to ensure that Norman properly understood the Will.
Mediation
In preparation for mediation a medical report was obtained from Dr Series. He found that Norman was not suffering from any mental disorder or mental illness which might have affected his testamentary decisions. Further he did not consider it likely that Norman suffered from a personality disorder.
The mediation succeeded and the parties entered into a Settlement Agreement. Under that agreement Jessica accepted the validity of the 2018 Will and the Claimants agreed to pay to her the sum of £700,000 (free from IHT) from the residuary estate. The agreement was expressed as being conditional upon the Court propounding the Will in solemn form. Pursuant to this agreement District Judge Singh ordered that the matter be listed for trial on written evidence.
Jessica made an application seeking an Order allowing her to put in expert and factual evidence challenging the validity of the Will. It was found that because of the Settlement Agreement she was prohibited from doing so. However, she was given permission to write to Dr Series highlighting the parts of his report, which allegedly contained factual errors and inviting him to re-visit his opinions.
The decision
His Honour Judge Richard Williams found that there was no irrationality or suspicion and that the 2018 Will was valid.
Points of note
HHJ Richard Williams found that Jessica’s motivation was chiefly a desire to set the record straight as she felt that she had been wrongly portrayed as being cold and uncaring towards her father. He made it clear that that was not his view.
He commented upon the devastating impact on children who are exposed to domestic violence between parents. He made reference to the decision of the Court of Appeal in: Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404 which highlighted the emotional harm caused to children (both short-term and long-term) and that children are affected as much by exposure to violence, as to being involved in it. Even when children do not continue in violent situations, emotional trauma continues to be experienced.
Even though the expert’s report was in places factually incorrect, those factual errors did not undermine the overall logic and reasonableness of the expert’s opinions. Norman had attempted unsuccessfully to re-establish a relationship with Marcus and Jessica, but that did not render the 2018 Will irrational. Rather he had accepted that the relationship had irretrievably broken down so he “pursued an alternative plan with vigour”.
Takeaways
- The expert commented that Norman’s personality showed some features of a personality disorder. For example his lack of concern as to the feelings of his family. It was noted that personality disorders are “enduring characteristics, which once established, usually in early adult life, persist throughout life.” He further commented that “…personality disorders are relatively common in the general adult population. It is by no means the case that having a personality disorder necessarily entails loss of testamentary capacity and in his experience would be unusual”.
- It is important not to under-play the significant impact of violence both actual and witnessed upon children in later life.
- Even in circumstances where an expert’s report is factually incorrect this may not undermine the overall logic and reasonableness of the opinions.
- The fact that Norman was taken through the Will in detail and that it was duly executed made it more difficult to challenge.
- Whilst Norman’s decision to disinherit his children and grandchildren could be regarded as unfair, in the circumstances it was not irrational. Indeed the decision was unremarkable and explicable having regard to Norman’s longstanding and unchanged personality traits, whether or not they constituted a diagnosable personality disorder.
- Although Norman lacked empathy and was unable or unwilling to accept responsibility for the permanent breakdown in the relationship with his children, he did know his mind and had strong albeit at times blinkered views.
This case is a reminder of the importance of considering the “whole story” and evolving relationships. Only then can we step into the shoes of a testator when trying to determine whether a will expresses their genuine testamentary wishes.
It is a reminder that people with “difficult” or “strong” personalities who make decisions which others may deem unfair, are not necessarily lacking in mental capacity. It is extremely important (albeit understandably difficult for clients experiencing strong emotions) to obtain and objectively consider the evidence, when considering whether to challenge a Will.
