Gill v Woodall & Ors (Rev 1)

This is an appeal brought by the Royal Society for the Prevention of Cruelty to Animals (“the RSPCA”) against a decision of Mr James Allen QC, sitting in the Leeds District Registry as a Deputy High Court Judge of the Chancery Division, revoking the grant of probate of the will of Joyce Gill (“Mrs Gill”), dated 27 April 1993.

In very summary form, the facts are as follows. Mrs Gill married John Gill (“Mr Gill”) in 1947 and their only child Christine (“Dr Gill”) was born three years later. From 1952, the family lived on Brookfields Farm near Girsby (“Brookfields”), which Mr and Mrs Gill owned and which Mr Gill worked. Dr Gill left home in 1968, and continued her education until 1979, when she obtained a doctorate, since when she has been a lecturer at Leeds University.

In 1975, Mr and Mrs Gill purchased Potto Carr Farm near Northallerton (“the Farm”) and Mr Gill worked both farms until 1987. In that year Mr and Mrs Gill sold Brookfields, and moved into a house which they had built on the Farm.

In 1986, Dr Gill married a fellow lecturer, Andrew Baczkowski, and, in the same year, she and her husband purchased White House Farm (“White House”), which consisted of a derelict house and some six acres of land adjoining the Farm. Mr Gill contributed about 40% of the purchase price of White House, Dr Gill and her husband paying the balance. Dr Gill and her husband have one child, Christopher, who was born in 1997.

In or before the middle of April 1993, Mr Argyle, a partner in the solicitors firm of Hunt & Wrigley in Northallerton, was instructed to prepare wills for Mr and Mrs Gill, in matching terms. After the two draft wills had been prepared, Mr Argyle sent them to the Farm. Thereafter, on 27 April 1993, Mr and Mrs Gill attended at Mr Argyle’s office for the purpose of executing their respective wills. The Judge concluded that, although Mr Argyle could not remember acting for or advising Mr and Mrs Gill, in accordance with his usual practice he read out their wills to them, whereupon each will was duly executed, and witnessed by two secretaries. The wills were then retained by Mr Argyle until after Mrs Gill’s death.

Each will was just over a page in length and contained six clauses. By clause 1 of her will (“the Will”), all Mrs Gill’s property was left to Mr Gill, provided that he survived her for one month, and he was appointed executor. Clause 2 stated that clause 1 would not apply if Mr Gill died within a month of Mrs Gill, and the ensuing three clauses would apply instead. By clause 3, two partners of Hunt & Wrigley were appointed executors. Clauses 4 and 5 were in these terms:

“4.

I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate unto my Trustees UPON TRUST that they shall sell call in and convert the same into money with power to postpone the sale calling in and conversion thereof for so long as they shall in their absolute discretion think fit without being liable for loss and shall with and out of the proceeds of such sale calling in and conversion and my ready money pay my funeral and testamentary expenses inheritance tax and debts and shall hold the residue UPON TRUST for the RSPCA of the Causeway Horsham West Sussex RH12 1HG absolutely AND I DIRECT that the receipt of the Treasurer for the time being of the RSPCA shall be a sufficient discharge to my trustees………

5.

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 in April 1999, aged 82. His will was never proved, and there was no formal administration of his estate. Mrs Gill died on 21 August 2006, aged 82. On 16 April 2007, probate was granted to two partners of Hunt & Wrigley, Mr Woodall and Mr Lonsdale, in accordance with clause 3 of the Will. At the time of her death, the Farm appears to have been worth well over £1m. Dr Gill made it clear from an early stage that she was unhappy with the terms of the Will, and in due course began the present proceedings.

Although the precise nature of Dr Gill’s case changed or widened from time to time after the death of her mother (not least following a change of solicitors), Dr Gill ultimately raised three arguments as to why she should be entitled to the Farm. Those arguments were:

After a hearing lasting some fifteen days and listening to over twenty witnesses of fact and two expert witnesses, Mr Allen QC in a very long reserved judgment which considered the substantial evidence and almost all the arguments in some detail, concluded that:

Accordingly, while the RSPCA won on the first issue, Dr Gill won on the second and third issues. Because Dr Gill won on the second issue, the Will was revoked. As a result, Mrs Gill was treated as having died intestate and Dr Gill inherited the Farm, so that she did not need to rely upon the estoppel point, although the Judge found for her on that issue also.

With the permission of the Judge, the RSPCA now appeals against his conclusions that Mrs Gill executed her will under the undue influence of Mr Gill, and that, if the Will is not revoked, Dr Gill is entitled to the Farm on the grounds of proprietary estoppel, and Dr Gill cross-appeals against the Judge’s conclusion that Mrs Gill executed the Will with knowledge and approval of its contents.

Having considered the clear and concise skeleton arguments prepared on behalf of the RSPCA and on behalf of Dr Gill, we concluded that we should hear full oral submissions on the first two issues, and then decide whether it was necessary or appropriate to hear oral submissions on the estoppel issue. After one and a half days of very well argued submissions, we concluded that it would involve unnecessary costs and court time if the parties developed their respective cases on the estoppel issue, because we considered that the Judge’s decision to revoke the Will should stand. Accordingly, we indicated the outcome of the appeal, explaining that we would give our judgment later.

Mrs Talbot Rice QC, who appeared on behalf of the RSPCA, contended that it was logical first to consider the question of undue influence, and only then turn to the issue of knowledge and approval. However, I agree with Ms Angus, who appears for Dr Gill, that the Judge was at least entitled, and, at any rate in this case, right to consider knowledge and approval first, and only then to turn to undue influence. That approach seems to me to be consistent with what was said by Lindley LJ in Tyrrell v. Painton [1894] P 151, 157. After referring to Barry v Butlin (1838) 2 Moo PC 480, where Parke B discussed “circumstances that ought generally to excite the suspicion of the Court”, Lindley LJ went on to say:

“[W]herever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.”

Knowing and approving of the contents of one’s will is traditional language for saying that the will “represented [one’s] testamentary intentions” – see per Chadwick LJ in Fuller v. Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the Will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.

In Fulton v. Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that

“When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator”.

This view was effectively repeated and followed by Hill J in Gregson v. Taylor [1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris deceased [1971] P 62, 77F-78B Hill J said that “when it is proved that a will has been read over to or by a capable testator, and he then executes it”, the “grave and strong presumption” of knowledge and approval “can be rebutted only by the clearest evidence.” This approach was adopted in this court in Fuller [2002] 1 WLR 1097, para 33 and in Perrins v Holland [2010] EWCA Civ 840, para 28

There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.

Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second hand way, and where much of the useful potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time. As Scarman J put it graphically in In the Estate of Fuld, deceased (No 3) [1968] P 675, 714E; “when all is dark, it is dangerous for a court to claim that it can see the light.” That observation applies with almost equal force when all is murky and uncertain.

In this case, there is the additional point that there is a first instance finding, after a long trial with much evidence, by a judge who gave a very full judgment, that the testatrix in question knew and approved of the contents of her will. It is, of course, a very well established principle that the Court of Appeal does not lightly interfere with findings of fact made by a trial judge. In particular, the mere fact that this court concludes that it would probably not have reached the same decision on the facts as the trial judge is not a proper reason for overturning his conclusion. Before overturning a first instance finding of fact, we have to be satisfied that the trial judge reached a conclusion that he could not reasonably have reached, or made findings which were not open to him on the evidence, or made some other fundamental error which vitiates his finding.

Despite these high hurdles which Dr Gill has to cross in order to satisfy this court that Mrs Gill did not know and approve of the content of the Will, I have reached the clear conclusion that, on the very unusual facts of this case, and in the light of the Judge’s reasons for reaching his conclusions, Dr Gill has established that the contents of the Will did not in fact represent her mother’s intentions.

In order to explain that conclusion, it is necessary to examine the Judge’s reasons for reaching his conclusion on this point and to set out some of the facts established by the evidence a little more fully.

The Judge approached the issue of knowledge and approval on a two stage basis. He first asked whether Dr Gill had established sufficient facts to “excite the suspicion of the court”, which really amounts to establishing a prima facie case that Mrs Gill did not in fact know of and approve the contents of the Will. Secondly, having held that Dr Gill had excited the suspicion of the court, he then turned to consider whether or not those suspicions were allayed by the RSPCA, who were of course supporting the Will. This approach accords with Parke B’s analysis in Butlin 2 Moo PC 480, quoted by Lindley LJ in Tyrrell [1894] P 151, 156-7, referred to above, and it is reflected in the approach in a number of other cases.

Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix’s knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in the unreported case of Crerar v. Crerar, cited and followed by Latey J in Morris [1971] P 62, 78E-G, namely that the court should:

“consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.”

In order to explain why it seems to me right to take the unusual step of reversing the trial judge’s conclusion that Mrs Gill knew and approved of the content of the Will, and also with a view to explaining the very unusual facts of this case, it is nonetheless convenient to follow the two stage process adopted by the Judge. After all, whether one approaches the issue, as the Judge did, in two stages, or whether one approaches it as a single question, as I would have thought was preferable, the answer should be the same.

In paragraph 476 of his judgment, the Judge set out the twelve reasons why his “suspicions [were] excited” in the present case and they were as follows:

“1.

The gift of the residue to the [RSPCA] in the light and context of Mrs Gill’s view of and attitude towards the [RSPCA] expressed and displayed during her life time;

2.

The non-provision by the Will … for [Dr Gill] given that [Dr Gill] is the only child of Mrs Gill and given the nature and extent of their relationship when Mrs Gill was alive, the care and support provided by [Dr Gill] to Mrs Gill;

3.

The fact that for 20 years or more prior to April 1993, [Dr Gill], and from 1987 onwards Dr Baczkowski, provided unpaid labour at Brookfields … and the Farm, which labour was substantial;

4.

The gratitude expressed by Mrs Gill for [Dr Gill]’s help and assistance;

5.

The level of financial provision and the value of the gifts made to [Dr Gill] by Mr and Mrs Gill;

6.

The expenditure made by [Dr Gill] and Dr Baczkowski on the purchase of White House … and in the rebuilding of the house thereat;

7.

The fact that the Farm was the only asset of Mr and Mrs Gill of any substantial value in 1993;

8.

Mrs Gill’s intention that the Farm would not be sold but would be enjoyed by future generations. The assurances and statements made by Mrs Gill to [Dr Gill] to the effect that she would inherit the Farm, which assurances she intended [Dr Gill] to rely upon and which [Dr Gill] did rely upon to her substantial detriment, the assurances of Mr Gill, and the conduct of both Mr and Mrs Gill illustrative of their intention to leave the Farm to [Dr Gill];

9.

Mrs Gill having suffered from a severe anxiety disorder, agoraphobia, which meant that she feared leaving the Farm, of being left alone at the Farm and of social contact with strangers;

10.

The fact that away from the Farm, and in the presence of strangers, the degree of anxiety suffered by Mrs Gill could be severe and, when so, it was likely to have inhibited her ability to concentrate and absorb information;

11.

At the meeting with Mr Argyle on 27 April 1993, Mrs Gill would have experienced severe anxiety, the degree thereof being at least 8 on a scale of 0 to 10, where 10 is the most severe. That anxiety would have impacted on her ability to concentrate upon what was being said to her by Mr Argyle. If the meeting on 27 April 1993 was the first and only time Mrs Gill had given consideration to the terms of her will, and if Mr Argyle had read over to Mrs Gill the will from top to bottom without further explanation, it is unlikely she would have been able to take in the entire words spoken and the effect thereof, in particular the provision for the [RSPCA] and the consequences thereof;

12.

After April 1993, Mrs Gill’s words and conduct were consistent with her anticipating that her family would inherit the Farm.”

Most of these grounds are self-explanatory. It is fair to the RSPCA to acknowledge that, for the purposes of this appeal, ground 8 can be given relatively little weight. Because it was central to the issue upon which we did not hear argument, namely Dr Gill’s proprietary estoppel claim, Mrs Talbot Rice did not develop her case as to why the Judge should have rejected Dr Gill’s evidence about the assurances and reliance thereon which the Judge referred to. Accordingly, it is only fair to the RSPCA to proceed on the basis of ignoring the evidence of Dr Gill and her husband as to the promises which were made. Although there was some other evidence of Mrs Gill saying and doing things which indicated an intention and desire that the Farm should be enjoyed by Dr Gill and Christopher, the only clear point that can be made is that Mrs Gill entered into a long term contract in relation to some woodland on the Farm, whose terms only make sense if she intended the Farm to be inherited by her family on her death.

Having said that, while, taken together, they represent a powerful reason for objective surprise and Dr Gill’s consternation at the content of the Will, grounds 1 to 8, on their own, would fall well short of justifying the conclusion that Mrs Gill did not know or approve of the contents of the Will. Subject to statutes such as the Inheritance (Provision for Family and Dependants) Act 1975, the law in this country permits people to leave their assets as they see fit, and experience of human nature generally, and of wills in particular, demonstrates that peoples’ wishes can be unexpected, inexplicable, unfair, and even improper. As I have mentioned, a court should be very slow to find that a will does not represent the genuine wishes of the testatrix simply because its terms are surprising, inconsistent with what she said during her lifetime, unfair, or even vindictive or perverse. Quite apart from the points already made, if the court sets aside a will, the result will be either that an earlier will prevails or that the rules of intestacy apply: either eventuality may result in an outcome that appears to comply with the wishes of the testatrix even less than that produced by the will at issue.

Having said that, it is only right to emphasise there is no doubt that the sort of factors which the Judge set out in grounds 1 to 8 may properly be added into the balance to support other factors, where they exist, which call into question whether the testatrix knew and approved of what was in her will. In a number of cases, the court has relied on the surprising (or unsurprising) provisions of a will to support (or undermine) other grounds for thinking that the testatrix did not know or approve of its terms – see e.g. Butlin 2 Moo PC 480, 487-488, Tyrrell [1894] P 151, 156 and Sherrington v Sherrington [2005] EWCA Civ , paras 73-75 and 84.

Subject to the point just made about ground 8, grounds 1 to 8 are not challenged by the RSPCA (other than, in some cases, as to degree), and they rest upon the evidence given below, which is fully set out in the Judge’s judgment. Accordingly, it is neither necessary nor appropriate for me to describe them further to any great extent. However, I shall say a little bit about some of them.

So far as ground 1 is concerned, there was some clear and specific, if not overwhelming, evidence that Mrs Gill did not approve of the RSPCA; on one occasion she referred to them as “a waste of time”, and on another she called them “a bunch of townies”. As to ground 3, there is now no dispute as to the amount of work carried out on the Farm by Dr Gill and Dr Baczkowski. Grounds 5 and 6, it is fair to say, do not take matters very much further: it is clear that Mr and Mrs Gill assisted Dr Gill in her purchase of White House, but, even allowing for falls in the value of money and rises in the value of property, the sum involved was small compared with the value of the Farm.

The essential effect of grounds 1 to 8 is that it was surprising that Mrs Gill, who had an estate worth over £1 million 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 fact that her daughter had not only given her considerable personal support, but had, together with her husband, done significant work on the farm reinforces the sense of surprise. Of course, one has to be careful to focus on 1993, when the Will was made, at which time Mr Gill was obviously Mrs Gill’s principal carer and supporter, Mrs Gill only owned half the Farm, and Christopher had not been born, but the general thrust of the point is still good.

Before turning to grounds 9 to 11, it is convenient to mention ground 12, which merits a little expansion (and to which I shall revert later in this judgment). In the seven or so years between the death of her husband and her death, Mrs Gill was asked about the Will by Dr Gill, and she replied that she and Mr Gill had left each other the Farm, and she said nothing about the RSPCA or clause 5 of the Will. This response naturally would have led Dr Gill to believe that her mother now owned the whole Farm (which was indeed correct) and that, as her sole child, Dr Gill would inherit it. Although Mrs Gill was not a lawyer, if she was conscious that by her own will the Farm had been left to the RSPCA, she would have realised that saying what she did say to her daughter was misleading, because of her silence about the gift to the RSPCA. The fact that Mrs Gill did not mention that gift seems consistent with her not having appreciated that she had left the Farm to the RSPCA, rather than with her either having forgotten it or intentionally misleading Dr Gill (although, while unlikely, both of those are possibilities).

I turn now to grounds 9, 10, and 11, which contain what are the crucial findings for the purpose of resolving the fundamental issue between the parties, namely the extent of Mrs Gill’s knowledge of what was in the Will. These three grounds require rather more extensive exegesis than the other nine (and they are also highly relevant to the second stage of the discussion on knowledge and approval in the Judge’s judgment).

As mentioned above, the Judge had witness statements from nearly thirty factual witnesses (in addition to Dr Gill, Dr Baczkowski and Mr Argyle) as to the character and relationship of Mr and Mrs Gill. Almost all those witnesses, who included their GP, Dr Walters, gave oral evidence and were cross-examined. The Judge also had expert evidence relating to Mrs Gill’s mental state from Professor Howard, a professor of old age psychiatry, and from Dr Royston, a specialist in old age psychiatry, both of whom gave oral evidence and were subjected to detailed cross-examination.

Mr Gill’s character was described by a number of witnesses. He was exceptionally opinionated and aggressive, and found it difficult to brook any disagreement, and was capable of acting perversely and disproportionately. As the Judge put it, Mr Gill “was a stubborn, self opinionated, domineering man who was prone to losing his temper quite easily which led to outbursts of fury. He was a bully who occasionally lost his temper with Mrs Gill if he considered she was being very critical of him or his conduct.”

There is no doubt that Mr Gill was a man who knew his mind and must have appreciated what was in his will, as well as in that of his wife. His reasons for wanting the Farm to go to the RSPCA on the death of himself and his wife are a matter of speculation, and do not matter for present purposes. There can be no doubt that, whatever his reasons, he will have felt them very strongly. That was the nature of the man; in any event, almost by definition, it must require strong feelings on the part of a father to make a will leaving nothing at all to his only child, to whom he has not given that much during his lifetime. It is also clear, as a matter of common sense and in the light of the Judge’s finding to that effect, that Mr Gill made his views clear to his wife and influenced her to make a similar will. That does not of course by any means necessarily lead to the conclusion that his influence was “undue”. That is not the issue currently under consideration, and there is no reason not to assume at this stage that the influence which he exercised was “due”. What is important for present purposes is that this influence can fairly be said to explain the motivation for, and origin of, the terms of the Will.

So far as Mrs Gill is concerned, no doubt partly as a reaction to Mr Gill, she developed what the Judge called “a shy and timid personality”. He went on to say that “Mrs Gill was capable of standing up for herself against Mr Gill when she considered it appropriate or desirable to do so”. However, he went on to say that “when Mr Gill took a particular stance with which Mrs Gill did not agree, she would, nevertheless, defer to Mr Gill and do what he required if he maintained his stance.” The Judge explained that there were two reasons for this. The first was Mrs Gill’s “fear of Mr Gill’s bad temper and outbursts of fury, … particularly so after Mr Gill’s suffered his aortic aneurysm in 1987 because of Mr Gill’s increasing irritability and loss of temper with resultant fury of which she was afraid”. The second reason, as the Judge immediately went on to say, was Mrs Gill’s concern “that she did not lose the support or assistance of Mr Gill upon whom she was very dependent”. The Judge also said that “Mr Gill accommodated his wife’s psychiatric difficulties to an extraordinary degree”.

By the early 1990’s, Mrs Gill had become so withdrawn, nervous of going out and nervous of strangers, that she had stopped going shopping, and refused to attend social events. Although she was persuaded to go to both of Dr Gill’s two degree ceremonies, Mrs Gill refused to get out of the motorcar, leaving it to her husband to attend the ceremonies. Although she attended concerts and pantomines at Christopher’s school, Mrs Gill would take many hours to prepare herself in a wholly obsessive way, and then “she, would just be an empty cloth doll with all the stuffing knocked out of her”.

Mrs Gill was prepared to talk to people when they visited the Farm, provided she knew them. According to one witness, whose evidence the Judge accepted, Mrs Gill “would not directly interface with him and would not directly approach him even when they were in her home”, and when outside the house, “Mrs Gill would acknowledge his presence but lower her head and scuttle back into the house”. Although very reluctant to leave the house, Mrs Gill did not like being left alone there, so she would go with Mr Gill onto the Farm, normally sitting in the motorcar, while Mr Gill worked.

On the other hand, it is clear that Mrs Gill was prepared to leave the house for the purpose of visiting doctors for medical purposes. The evidence established that she attended a number of doctors for various reasons, including her GP. The evidence also established that she was quite prepared to form and express her own view as to appropriate medical treatments and operations.

As to Mrs Gill’s psychiatric condition, Professor Howard, whose evidence the Judge accepted, was of the opinion that Mrs Gill suffered from agoraphobia with panic disorder to a serious degree. Although Dr Royston had a different opinion on that crucial issue, Mrs Talbot Rice realistically did not suggest that the Judge was not entitled to prefer the evidence of Professor Howard. Although she disagreed with Professor Howard as to the diagnosis of Mrs Gill’s psychiatric condition, Dr Royston substantially agreed with him as to the likely effect of serious agoraphobia, to which I now turn.

The effect of Professor Howard’s evidence as to Mrs Gill’s likely state of mind when visiting Mr Argyle at his offices was described by the Judge in the following terms:

“Seeing a solicitor, even with Mr Gill being present, would have been outside the set of situations within which Mrs Gill would have been expected to have been able to prevent the emergence of severe anxiety symptoms. This would be likely to have materially affected her ability to concentrate upon and digest what was being said to her during such a meeting and her relationship, of absolute dependence upon Mr Gill, would have made it very difficult for her to express a wish to make a will that was different to the one the he wished her to make.”

If Mrs Gill had been present at a meeting at which the contents of her will had been discussed with a solicitor, the Judge said that:

“her degree of anxiety would, at the very least, have been comparable to that experienced by most people when they are frightened or upset in a stressful situation that they would otherwise try to avoid. … Mrs Gill’s thoughts would have been dominated by an impulse to escape back to the safety of home, she would probably have felt on the edge of panic. Such anxiety would most probably have affected her ability to concentrate, to take in and to commit to memory material that was presented at the meeting. … Mrs Gill would have been most likely to have actively done whatever she could to bring the meeting with the solicitor to a conclusion so that she could return home with her husband… . She would also have tried to do what she could to delegate as much as possible of her involvement in the meeting to Mr Gill.”

The Judge said that “Professor Howard believed that Mrs Gill would have avoided expressing such views [i.e. views that differed from those of other people around her] or acting on them if this was likely to prolong exposure to stressful social situations or risked alienating somebody she would have regarded as a vital support such as her husband or daughter.”

As to what might have happened when the Will was read out to Mrs Gill by Mr Argyle, the following propositions seem to me to be uncontroversial on the basis of the judgment below and the expert evidence:

On the basis of this very unusual evidence as to the behaviour, character and psychiatric state of Mrs Gill, and the views, character and influence of Mr Gill, it is easy to understand how the Judge concluded that a prima facie case had been made out to the effect that the Will did not represent the testamentary intentions of Mrs Gill as at April 1993. To put the point in more traditional language, it is unsurprising that, in the light of this evidence, the Judge decided that his suspicions were excited as to whether Mrs Gill actually knew and approved of the contents of the Will when she executed it.

Mrs Talbot Rice contended, however, that the grounds relied on by the Judge were, as a matter of principle, insufficient to excite his suspicion. She made the point that the fact that it was surprising, even astonishing, that Mrs Gill made a will in 1993 leaving nothing to her daughter should not be enough to excite suspicion, as otherwise any will would be at risk of being overturned because of its surprising, perverse, unfair or unreasonable terms. As already indicated, I accept that, at least normally, the mere fact that the terms of a will are surprising or worse should not, without more, raise a presumption that the testator did not know or approve of the will. However, that fact can be supportive of such a presumption when there are other features which support that presumption, and, in this case, as the Judge rightly held, there were such other features.

Mrs Talbot Rice also made the more specific point that Mrs Gill deferred to her husband’s wishes, at least when it came to the Farm, and that, whatever may have been her own preferences in the absence of her husband’s wishes, she decided to do what he wanted. While some people may see this as a weak attitude to have adopted, and while it may, depending on the precise facts, give rise to an allegation of undue influence, Mrs Talbot Rice’s contention is that the point explains the terms of the Will and dissipates any “suspicion” which would otherwise be “excited”. While attractively developed, I do not consider that this point justifies our overruling the Judge’s conclusion that a prima facie case, based on the twelve grounds set out in his judgment and quoted above, had been established that Mrs Gill did not know and approve of the contents of the Will. As already mentioned, to overturn that conclusion, we would have to be satisfied that no reasonable judge could have reached it or that his grounds were misconceived or irrational. The point is not strong enough for that. First, it does not alter the fact that the terms of the Will were surprising (grounds 1 to 8), although I accept that it weakens the force of those grounds; secondly, it does not meet the point about Mrs Gill’s subsequent conduct (ground 12), although I accept that that ground is of limited value; thirdly, and most importantly, it does not begin to address the central feature, namely Mrs Gill’s agoraphobia and her likely level of understanding (grounds 9, 10, and 11).

Having been satisfied, for these understandable reasons, that his “suspicion” was “excited”, in that Dr Gill had made out a prima facie case that the contents of the Will did not have Mrs Gill’s knowledge and approval, the Judge went on to consider whether that prima facie case was answered, in that his suspicion had been dispelled, by the RSPCA, and came to the conclusion that it had been, essentially for three reasons, which were as follows:

In agreement with Ms Angus, I have reached the conclusion that none of those three reasons bears scrutiny.

So far as the first reason is concerned, there is no direct evidence of any meeting with Mr Argyle, prior to the preparation of Mr and Mrs Gill’s wills or prior to the meeting of 27 April 1993 when those wills were executed. However, I consider that the Judge was entitled, indeed realistic, to infer that there had been such a meeting. It seems inherently more probable that Mr Gill would have called on, rather than telephoned, Mr Argyle in order to give instructions about the preparation of his and Mrs Gill’s wills. At that meeting, Mr Argyle was no doubt told about the contents of the projected wills, and, pursuant to his normal practice, he would have asked why Dr Gill was being excluded. He also explained that his practice was not to take that aspect further if he was told that the reason was financial, and it appears from clause 5 of the Will that that is what he was told in this case, as the Judge rightly said.

Where I think the Judge went wrong was to infer that, on the balance of probabilities, Mrs Gill accompanied Mr Gill to that first meeting. Although Mr Argyle had no recollection at all of having acted for the Gills, it is clear from his evidence that he was quite prepared to prepare wills for a wife and husband on the instructions of either. Thus, he would have been perfectly happy to draft wills for Mr and Mrs Gill after meeting, and taking instructions from, Mr Gill alone. Mrs Talbot Rice suggested that, in re-examination, Mr Argyle said that he thought it was more likely that his initial instructions would have been at a meeting attended by Mrs Gill as well as Mr Gill. However, it seems to me that there is nothing in that: he was simply saying that this was the more usual course. However, with Mr Gill’s domineering and capricious personality and, even more, with Mrs Gill’s acute agoraphobia and fears, this case is very much outside the common course.

On the evidence he had, it seems to me the Judge should clearly have concluded that, in the absence of any evidence that she attended this first meeting with Mr Argyle, it is very probable that Mrs Gill did not do so. By 1993, Mrs Gill was very reluctant to leave the Farm, and while Mr Gill may have persuaded her to leave from time to time with him in the motorcar, because she did not like being left alone, it seems most unlikely that she would have been persuaded to get out of the motorcar and go into Mr Argyle’s office. Also, unlike some spouses, Mr Gill, as an opinionated domineering man, would have seen no reason to have his wife with him when giving instructions to a solicitor to draft their wills. Further, as a considerate husband (which in many ways he clearly was), knowing the great emotional strain it would cause her, Mr Gill would not have asked his wife to accompany him to a solicitors’ office, unless it was strictly necessary for her to do so.

Even if the Judge’s view that Mrs Gill attended this first meeting had been correct, it is not entirely easy to see how, in light of his acceptance of Professor Howard’s evidence as to what Mrs Gill would have taken in, the fact that she attended such a meeting would have helped dispel the suspicion which the Judge accepted had been established. Mr Argyle clearly did not appreciate that Mrs Gill suffered from a psychiatric condition which would, or was quite likely to, have resulted in her not understanding what he was saying, so he would not have expressed himself particularly carefully to her. In those circumstances, it seems to me rather hard to reconcile the judge’s “suspicion” being “excited” by the evidence as to Mrs Gill’s likely state of mind and consequent lack of concentration and understanding in a solicitor’s office (summarised in the Judge’s ground 11), with his first reason for concluding that the suspicion was displaced. However, it is unnecessary to decide the point, as in my judgment, the correct conclusion must be that Mrs Gill did not attend a meeting with Mr Argyle before that on 27 April 1993.

It is convenient to take the Judge’s third reason next. The important finding in that connection is that Mr Argyle explained each clause of the Will before turning to the next clause. On that basis, it is possible that, despite her state of acute anxiety in Mr Argyle’s office, Mrs Gill may have understood the effect of each clause. On the other hand, as the Judge accepted in his ground 11, if Mr Argyle had read out the Will, as it were in one go, or “from top to bottom”, she would not have appreciated its terms.

In my view, the problem with the Judge’s finding that, at the meeting of 27 April 1993, Mr Argyle read out and explained each clause of the Will in turn to Mr and Mrs Gill, is that it is plainly contrary to the evidence. It seems to me clear that Mr Argyle’s normal practice was to read out a will to the prospective testatrix in one go, and then to ask the testatrix if she had any questions. As I have already explained, Professor Howard’s evidence, accepted by the Judge, was that Mrs Gill would not have understood the effect of the Will if it had been read out to her in this way in Mr Argyle’s office. He also said that he would not have expected a solicitor to appreciate that Mrs Gill was suffering as she would have been. Indeed I strongly suspect that, if he had appreciated Mrs Gill was suffering from acute panic, first of all Mr Argyle would have remembered the meeting and secondly he would not have allowed the meeting to proceed to the execution, at any rate of her will.

Both in cross-examination and in re-examination, Mr Argyle said that his normal practice was to read out the will in one go. Mrs Talbot Rice argued that the Judge was entitled to reach a different conclusion in the light of what Mr Argyle said in his witness statement, which, she said was to a different effect. Assuming in favour of the RSPCA that the Judge could properly have taken such a course, it seems to me that, on a fair reading, the witness statement is wholly ambiguous on the point, and the ambiguity was decisively resolved by Mr Argyle’s oral evidence. There was therefore simply no basis for the Judge concluding that Mr Argyle had read the wills out clause by clause, as opposed to from top to bottom. That effectively disposes of the Judge’s third reason.

I might add that, in light of the complexity of clause 4 of the Will, there must be some doubt whether, even if Mr Argyle had read it out on its own, Mrs Gill would have understood it, in the light of Professor Howard’s evidence. However that is a point which it is unnecessary to consider, and it is very probably not a point on which it would be right to differ from the trial judge.

So far as the Judge’s second reason is concerned, it is clear that two draft wills were sent to the Farm, and it is not an unfair inference to assume that they were sent in a single envelope addressed to Mr and Mrs Gill. In a normal case, there is much to be said for the proposition that, where a draft will is sent to the prospective testatrix, it is a fair assumption that she has read it, particularly if, as would inevitably be the case (because otherwise there would be no will) it was thereafter duly executed by the testatrix.

However, each case turns on its own particular facts, and, as can be appreciated from the view I have formed of the Judge’s third reason, and indeed from reading his judgment, this is far from being a usual case. It is a fair point that there is no evidence that Mrs Gill’s agoraphobia and fear of Mr Gill would have prevented her from opening the envelope and reading the draft Will. However, there is nothing to suggest that she did so. As mentioned, in a normal case one might well make such an inference, but, bearing in mind the evidence as to Mrs Gill’s fragile mental state and her fears and concerns, it is by no means likely that she would have opened the envelope, and, if she did so, that she would have read the draft Will.

The notion that Mrs Gill did not read the draft Will is supported by her reply to Dr Gill’s enquiry as to the contents of the Will, after Mr Gill had died. As already mentioned, it seems unlikely (though possible) that Mrs Gill would have intentionally misled her daughter. That supports the notion that she did not know at that time what was in the Will, which in turn supports the contention that she did not know what was in the Will when she executed it, as the experts agreed that what she knew in 1993 would have been likely to be retained in her memory six years later. If she simply did not want to admit what was in the Will, when Dr Gill asked, as Mrs Talbot Rice suggested, that would tend to indicate that she had a general state of denial about what was in the Will, which would tend to support the idea that she would not have wanted to read the draft Will when it was sent to her and Mr Gill.

It was suggested by Mrs Talbot Rice that the fact that Mrs Gill told her daughter that she and Mr Gill had left their respective property to each other supports the contention that she must have read the Will. I do not agree, and, in view of his ground 12, nor did the Judge. Mrs Gill could well have been told of that aspect of her Will by her husband, when they went to Mr Argyle’s office to execute their wills. Mr Gill must have told her something about the purpose of the visit to Mr Argyle, in order to persuade her to come with him into the office. That might well have been that each was to make a will with the other as the beneficiary. Further, given her likely inability to concentrate as described by Professor Howard, it is quite possible that she could have taken on board clause 1, when the Will was read out by Mr Argyle, but not the rest of the Will. Indeed, on the Judge’s finding that she would have understood the contents of the Will if Mr Argyle had read each clause separately, and then stopped to discuss it before going onto the next clause, it appears to me to be positively likely that Mrs Gill would have understood clause 1, while not understanding the remaining clauses, given that Mr Argyle read the Will out to her in one go.

In the light of the Judge’s “suspicion”, and the twelve grounds he cited in support of that suspicion, and in the light of my rejection of the first and third reasons cited by the Judge for dispelling his suspicion, it seems to me plain that this second reason, on its own, involving as it does pure speculation, is in any event, wholly insufficient, on the facts of this unusual case, to justify the conclusion that Mrs Gill knew or approved the contents of the Will at the time she executed it.

For these reasons and for the reasons given by Lloyd LJ, whose judgment I have seen in draft, I am of the opinion that the Judge was right, or at least entitled, on the evidence before him, to conclude that Dr Gill had made out a prima facie case that her mother had not known or approved of the contents of the Will when she signed it, but that the Judge was wrong, and not entitled, to conclude that the RSPCA had rebutted that case for the three reasons which he gave.

It may well be that, if the Judge had approached the question of knowledge and approval as a single issue, rather than dividing it up into two issues, he would have reached the right conclusion. Particularly in a case with a large number of witnesses, heard over many days, it does not seem to me wise to consider an issue in two stages, when those stages ultimately involve the same question, namely, given the effect of the factual and expert evidence, did Mrs Gill appreciate what was in the Will when she signed it? To be fair to the Judge, the approach which he adopted can be derived from earlier cases, and was supported by both counsel.

Judging from some submissions made during the hearing of the appeal, there may be a danger of this decision being be seen as something of a green light to disappointed beneficiaries, and in particular to close relatives of a testatrix who have not benefited from her will, to challenge the will even where it has been read over to the testatrix, or to appeal a full and careful first instance decision upholding a will’s validity. It is therefore right to emphasise that the facts of this case are quite exceptional, and that we are differing from the Judge on an unusual basis. The facts are exceptional because, as the two highly qualified expert witnesses agreed, the testatrix suffered from what the Judge held to be a fairly 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. I would reverse the Judge on the facts, but only because, having correctly found a prima facie case of lack of knowledge and approval, he then identified three matters which he held undermined that prima facie case, and I am of the view that none of those matters were open to him on the evidence.

We heard full argument on the first ground of appeal, namely whether the Will was executed by Mrs Gill under the undue influence of Mr Gill, and I was initially of the view that we should decide it. However, it seems to me rather unreal to consider arguments as to the nature and extent of the influence Mr Gill exerted on his wife to persuade her to leave the Farm to the RSPCA, when I have just concluded that she did not know that she was doing that very thing.

In the event, therefore, I would dismiss the RSPCA’s appeal on the ground raised in Mrs Gill’s respondent’s notice, and uphold the order below, albeit on different grounds from the Judge.

I agree that the judge’s order revoking the grant of probate of Mrs Gill’s will should stand, on the ground set out in the Respondent’s Notice, that Mrs Gill did not know or approve of the contents of the will. It is unnecessary and inappropriate in that situation to deal with the contingent question whether, if she did know and understand what the will said at the time when she executed it, her willingness to do so was the result of undue influence exercised by her husband.

As the Master of the Rolls has said, this is an altogether extraordinary case on the facts, above all because of the severity of Mrs Gill’s agoraphobia and panic disorder. Mrs Talbot Rice submitted at one point that if Mrs Gill was said to be incapable of taking in what the solicitor was saying to her about the contents of the document, then it was properly to be regarded as a dispute about testamentary capacity, not about knowledge and approval. No case of incapacity had been made, and the experts agreed that Mrs Gill was, in principle, of the necessary capacity on the date when she executed her will.

I do not accept this submission. It is one thing to say that on a relevant date Mrs Gill had the necessary understanding of the nature and extent of the property of which she could dispose by her will, and of the claims of relevant persons on her benevolence. It is quite another to examine whether, in particular circumstances, she did in fact understand what was said to her at a given meeting and what was in the document which she signed. Nothing that Professor Howard said, or that the judge held, is inconsistent with the possibility of Mrs Gill having been able to execute a will the contents of which she did know and understand, if the contents were explained to her in different circumstances, in her home, by people she knew. Even then there might have been a difficulty about getting the will executed, but that is a different point.

On the basis that she did have the necessary capacity to make a will, therefore, the question is whether she knew, understood and accepted the terms of the particular document to which she put her signature on 27 April 1993. The judge said at paragraph 460: “It must be proved that the testator completely understood, adopted and sanctioned the dispositions proposed by the will”. Mrs Talbot Rice said that the judge’s finding in favour of the will on that basis showed that there cannot have been undue influence. The judge cannot have meant that, since it was after that part of his judgment that he went on to consider undue influence. More generally, it seems to me that there is a risk of reading too much into the words traditionally used in this area of probate law. It may not be useful to analyse the traditional phrase at all, but at any rate one can say that it covers the propositions both that the testator knows what is in the document and that he approves of it in the sense of accepting it as setting out the testamentary intentions to which he wishes to give effect by execution. In Hoff v Atherton [2004] EWCA Civ 1554 at paragraph 64 Chadwick LJ said:

“If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say that he did understand what he was doing and its effect”

That is a convenient and pithy paraphrase of the conventional phrase.

Turning to the remarkable facts of the present case, it seems that the judge would have held that Mrs Gill did not know and approve of the terms of the document which she executed as her will, but for three factors: first, that she had been to see Mr Argyle on a first occasion, at which instructions had been given for the will, secondly that the draft will had been sent to her at home and she had read it there, and thirdly that at the execution meeting it had been read over and explained to her in such a way that she did understand it.

I agree with the Master of the Rolls that the judge’s findings on these three points are not supported by evidence. In my judgment, these findings were not open to him on the evidence before him.

On the judge’s findings as to Mrs Gill’s attitude, by 1993, to meeting strangers it is clear that Mrs Gill would have been reluctant in the extreme to come into Mr Argyle’s office, even with her husband. We know that she did go there once, on 27 April 1993. We can infer that even getting her there on this one occasion would have been very difficult for Mr Gill to achieve. We do not know how he achieved it, but it seems likely to have involved his explaining that they were to make wills, and he may well have sought to make this easier for her to accept by saying that the will of each would be in the other’s favour. Given the difficulty that he would have encountered even on the one occasion when her attendance was indispensable, it seems to me most unlikely that he would have tried to get her to come in with him on another occasion, even if she came with him in the car so as not to be alone at home. I agree with the Master of the Rolls that he would not have done so both because he did not want to create unnecessary difficulties for himself (or for her) and because he would have considered it unnecessary that she should attend on that first occasion.

I also agree with the Master of the Rolls that, although the judge could properly have accepted that an envelope addressed to Mr and Mrs Gill (as the eventual invoice was) was sent to the Farm after the first meeting, containing the two draft wills, it is pure speculation as to whether Mrs Gill took the opportunity to read the draft of her will. In many cases, especially where there is only one will, and the draft is sent by the solicitor to the person whose will it is to be, that fact may permit a legitimate inference that the person in question has read it. Whether that is a proper inference will depend on other circumstances. In Hoff v Atherton [2004] EWCA Civ 1554 at paragraph 17 Peter Gibson LJ said that, although there had been no specific finding by the judge that the deceased had read the draft will sent to her, “there is no reason to think that [the deceased] did not receive or read it.” In that case a solicitor, who had made wills on several prior occasions for the deceased, received a letter from the deceased asking him to draw up a new will for her in given terms. The solicitor sent a new will under cover of an explanatory letter addressed to the deceased. The beneficiary under the proposed new will later arranged for witnesses to attend so that she could execute it. In preparation for that occasion the deceased “laid out the will before the witnesses arrived”. There was no reason to suppose in that case that the deceased, having written to the solicitor to ask him to prepare a new will for her, would not have opened the letter, read it and also read the enclosed will on receiving it through the post. There was positive evidence that she had the document in her possession, from what she did to prepare for its execution.

The present case is quite different. There is no actual evidence to show that Mrs Gill did see the draft which had been prepared for her. No doubt Mr Gill looked at both drafts to check that they conformed with the instructions which he had given to Mr Argyle, as to what he wanted to achieve. It is a matter of speculation whether he discussed the drafts with his wife or showed her draft will to her, or that she saw it. The experts agreed that, if she did see it at home with leisure to read it in her own way and in circumstances with which she was comfortable, she could have taken it in and understood it. They also agreed, as the Master of the Rolls has mentioned, that if she did absorb the contents of the will, including the gift to the RSPCA, she would have been capable of remembering it six years later, that is to say at the time in 1999 when, after Mr Gill’s death, Mrs Gill told her daughter that she and her husband had made wills each leaving the estate to the other.

I agree with the Master of the Rolls’ reasons for saying that it was not open to the judge to find that Mrs Gill had read the draft will at home, and that his finding that she did is inconsistent, among other things, with the better view as to why Mrs Gill did not tell her daughter that, as she had survived her husband, her will left her estate to the RSPCA.

The judge’s finding that Mrs Gill did understand the will as read over to her on 27 April 1993 seems to me to be even more clearly inconsistent with the evidence. On the basis that this was the first time that Mrs Gill had been to see the solicitor, it is clear from the expert evidence 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. That emerges clearly from the judge’s findings set out at paragraph 458 of the judgment.

There was a dispute as to the effect of the evidence about how Mr Argyle read over the will to Mrs Gill on 27 April 1993. What seems to me to be clear is that Mr Argyle had no reason to suppose that Mrs Gill was in the state of anxiety, bordering on panic, which she must in fact have been suffering. He would therefore not have made any allowances for a special state of mind which required special precautions by way of explanation of the will. In his witness statement Mr Argyle referred to his general practice as being that he “would read through the various clauses with [his clients] and explain their effect, answering any queries”. I agree with the Master of the Rolls that this does not begin to support a finding that Mr Argyle took each clause one by one, in such a way that Professor Howard would have accepted that she would have taken it in. We were shown a telling passage in his evidence in which he contrasted the way that a doctor would explain matters to a patient with the way a lawyer would read over a will. The judge referred to this in paragraph 415 of his judgment where he said:

“Doctors break down the information into little chunks and check with the patient that they understood what was being said to them by the doctor before he moved on to the next matter.”

Professor Howard also attached importance to the use of open questions if one is to be confident that the person addressed has understood what is said. Just to ask Mrs Gill whether she understood would have produced, probably, no more than a nod, and at most a monosyllabic assent. Undoubtedly she would not have posed even a single question to Mr Argyle, she being desperate not to do anything that would prolong the experience.

I therefore agree with the Master of the Rolls that the judge’s finding at paragraph 479 that the will was read to her and explained in such a way that she did understand what was being said to her is incompatible with the evidence. Part of the judge’s reasoning there is based on the proposition, which I have also found to be incorrect, that Mrs Gill had seen Mr Argyle already when instructions were given for the will. Part of it is based on a finding that Mr Argyle did break the information down into separate bits, explaining each in turn. That too is not supported by the evidence.

I therefore agree that, for the reasons given by the Master of the Rolls as, in some respects, enlarged on in what I have said above, the appeal should be dismissed because Mrs Gill did not know and approve of the contents of the will which she executed on 27 April 1993.

I agree that this appeal should be dismissed for the reasons given by the Master of the Rolls and Lloyd LJ.