The Court of Appeal (Ld Neuberger MR, Lloyd LJ, Jackson LJ) has published its reasons for rejecting the RSPCA's appeal in the case of Gill v Woodall [2010] EWCA Civ 1430.
The case could raise serious disquiet for testators concerned over whether their intentions will be respected by their family and the courts and for charities which could lose out to disappointed family members. Perhaps sensing this, the Court took steps to confine the case to its facts, but there are some lessons which may be drawn.
The decision
On the face of it, the will should not have been open to challenge. It was relatively straightforward, drawn up by a solicitor and explained to the testatrix at the solicitor's office, where it was executed. The will was unconventional in that it left everything to charity and nothing to the testatrix's only daughter, but in English law, with some limited exceptions, a testator/rix may be as capricious as they like in making their testamentary dispositions; we have no forced heirship regime requiring certain provision to be made for family members. There are, however, grounds upon which the integrity of a will or legacy may be challenged, such as lack of capacity, or the grounds raised in this case.
The testatrix's daughter, Dr Christine Gill, had succeeded at first instance in having her mother's will quashed on the basis of undue influence by the testatrix's husband. The judge had also found that Dr Gill would have succeeded on the basis of proprietary estoppel. The RSPCA appealed against both of these decisions; Dr Gill cross-appealed against the judge's decision that her mother knew and approved the contents of her will.
Very unusually, the Court of Appeal reversed the first instance judge on the facts of the case, finding that the judge was wrong to conclude that the testatrix knew and approved of the contents of her Will, and so found for Dr Gill on that basis.
No judgment was given on the two bases for the first instance decision. In fact, the Court did not hear argument on proprietary estoppel, having already made its decision.
It had been hoped that the appeal decision would bring some clarity to this area. Instead, it risks doing the opposite, but it is to be hoped that it will be confined to its facts, which the court emphasised were "very unusual" (paras 19 and 23), "unusual" (para 62), "quite exceptional" (para 65), "altogether extraordinary" (para 69) and "remarkable" (para 73).
The case was made very difficult by a lack of fundamental evidence which would usually be found in such a case: the solicitor's will file had been destroyed; the medical evidence was hotly disputed, with no direct evidence on a disputed mental condition from any doctor who had seen the testatrix; and, perhaps crucially, there was no evidence indicating why the testatrix wanted to benefit the RSPCA over her only daughter. These circumstances laid the ground for the Court of Appeal to take the highly unusual step of reaching the opposite conclusion from the trial judge on the same facts, by taking a different view as to what was more likely to have happened when the will was drawn up and executed.
The Court noted that it should be "very cautious about accepting a contention that a will executed [in the circumstances of this case] is open to challenge" before finding reasons to do just that. So, what can testators do to protect their wills from challenge and what can charities do to protect their interests?
Testators
Testators may want to check with their solicitor how long the will file will be retained. If someone challenges their will, would that file contain comprehensive file notes detailing the instructions given, the reasons for those instructions and any unusual circumstances, as well as details of the circumstances for the execution of the will, which could be produced in answer to the challenge?
Testators can also take steps themselves to make their intentions known to family members, especially if they may be disappointed. If a family member is to receive less than they might expect, the reasons for this should be explained. This can be done in a letter left with the will.
Testators should also be aware of the risk of giving hope, even unintentionally, to someone that they will benefit from their estate. If someone relies upon this to their detriment, it could give rise to a proprietary estoppel claim which would take precedence over a valid will.
Charities
The main problem for the charity in the case seems to have been the lack of evidence to explain why the testatrix would want to do something deemed so extraordinary as to leave the farm to a charity and nothing to her only daughter. In such circumstances, it was relatively easy for the court to decide that this was not what the testatrix intended at all, either because she had been made to do it (first instance) or because she did not realise this is what her will did (appeal).
Charities should continue to do what they can to educate would-be testators of the need to explain their decision to favour the charity, as well as forewarning potentially disappointed family members.
Conclusion
This case could be taken as an alarming move by the courts towards a form of judge-made forced heirship, restoring what may be seen as the 'natural order' whereby the family inherits the estate. It seems, however, that it should rightly be confined to its 'exceptional' facts. Charities are not obliged to take or defend proceedings, but neither should they roll over in the face of a challenge to a legacy to them. They should take proper advice, consider the risks and benefits of the case and make a decision in the best interests of the charity.
The Gill case shows how difficult it can be for charities which find themselves in this situation, as well as distressing for the family members left with no explanation for the will. Charities and testators alike should work to ensure that the evidence is available to explain and support the integrity of the Will.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
