What an exciting month December was. We got decisions in the two big RSPCA appeals.

In Gill v RSPCA [2009] EWHC 2990 (Ch), at first instance the court held that the will which disinherited Mrs Gill’s only daughter, leaving everything to the RSPCA, was invalid. It found that Mrs Gill had known and approved the contents of the will, but that it was the product of undue influence exerted by her domineering husband.

The Court of Appeal ([2010] EWCA Civ 1430) agreed that the will was invalid, but did so on the basis of lack of knowledge and approval.

Mr and Mrs Gill made mirror wills leaving everything to the other and, if the other predeceased, to the RSPCA. The wills contained a declaration that no provision had been made for the daughter because she had already been well provided for.

Mr Gill died in 1999. His will was never proved and the estate was dealt with on the basis that everything passed to Mrs Gill by survivorship. Mrs Gill died in 2006.

Mrs Gill suffered from severe agoraphobia and an anxiety disorder. She disliked meeting people and was unusually dependent on her husband. Mr Gill was domineering and short-tempered.

Lord Neuberger MR agreed with the trial judge that it was surprising that Mrs Gill, who had an estate worth more than £1m in 2006, left nothing in the will to her only daughter, of whom she was clearly very fond and on whom she had been dependent, when the daughter and her family were not particularly well provided for, and that, instead, Mrs Gill left the whole of her estate to a single charity with which she had no apparent previous connection and about whom she had made derogatory comments.

The circumstances raised a prima facie case of lack of knowledge and approval.

Expert medical evidence suggested that, had Mrs Gill attended a meeting with the solicitor, her panic and anxiety would have prevented her taking in what was happening. The trial judge concluded that, if the will had been read over to her, she could not have known or understood the terms and effect of her will. Despite this, he found that she had known and approved the contents of the will for three reasons: The solicitor had destroyed his file and had no recollection of what had happened. The Court of Appeal held that, without supporting evidence, these reasons were not justifiable.

  • Mr and Mrs Gill had both gone to the solicitor’s office to instruct him to prepare their wills;
  • Following that meeting, and the preparation of the wills, the solicitor sent the draft wills to Mr and Mrs Gill, and Mrs Gill saw and read the draft will in her home before she went back to the office to sign it;
  • The solicitor ‘did not simply read out the will from top to bottom’. He ‘read each clause separately, he broke down the will into separate bits of information and he checked whether Mrs Gill had any queries in relation to each bit of information’.

(1) It was inherently more likely, given his wife’s anxiety disorder, that Mr Gill had visited the solicitor alone to give the initial instructions. (2) It was clear that two draft wills were sent to the farm, and they were probably in a single envelope addressed to Mr and Mrs Gill. Normally, it would be fair to assume that both parties had read the drafts. However, bearing in mind the evidence as to Mrs Gill’s fragile mental state and her fears and concerns, it was by no means likely that she would have opened the envelope and read the draft will. (3) The solicitor’s evidence was that his normal practice was to read out the will in one go and there was nothing to suggest that he had explained the contents of the will clause by clause.

Once lack of knowledge and approval were established, there was no need for the Court of Appeal to go on to consider undue influence.

Practitioners may want to consider whether it is good practice to send mirror wills in separate envelopes and ask for a signed confirmation from each party. However, while such a practice would be helpful with regard to knowledge and approval, it would not help where there was evidence of undue influence.

Constructive criticismIn RSPCA v Sharp [2010] EWCA Civ 1474, the issue was the construction not the validity of the will. Readers may recall that the trial judge criticised the RSPCA for bringing the case (see [2010] EWHC 268 (Ch)).

Mr Mason left a pecuniary legacy of an amount equal to ‘the maximum which I can give without inheritance tax becoming payable in respect of this gift’ and a gift of his bungalow to non-exempt beneficiaries, residue to the RSPCA. There was a direction that inheritance tax, if any, on the bungalow was to be paid from the residue of the estate.

The executors had interpreted the pecuniary legacy as a gift of an amount equal to the nil-rate band in force at the date of death, with the result that the whole value of the bungalow was taxable.

All parties agreed that the court should construe the language of the will and that it was not permissible to look outside to discover by the use of extrinsic evidence what the testator ‘really’ meant. Patten LJ said that it is dangerous to approach the assessment of the testator’s intentions other than through the language of his will. Although solicitors do make mistakes, there needs to be something in the language of the document or its admissible background to justify that inference. More importantly, those factors must be such as to permit the court to give the words actually used a meaning which is not strictly in accordance with the usual rules of grammar or vocabulary. This is in accordance with the approach to the construction of contracts taken by the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896.

On that basis the Court of Appeal accepted that the wording of the pecuniary legacy limited the gift to what was left of the nil-rate band after taking into account the value of the bungalow. It also preferred the RSPCA’s contention that the executors’ construction of the will made the words ‘if any’ in the gift of the bungalow meaningless because there would always be tax payable. On the RSPCA’s construction, tax would only be payable if the value of the bungalow exceeded the nil-rate band.