This is a post about an Inheritance Act 1975 claim by an adult child; but it is also a poignant human story about a family feud, about a daughter’s letter sent in wrath, and a mother’s letter that was written but never sent. Those letters came, four years after the deceased’s death (and over a decade after the letters themselves were written) to determine the outcome of the claim.
Dolores Del Rio with her mother on the steps of a train, holding a bouquet of roses, ca. 1929-1932. From the University of Washington Coillection on Flickr Commons.
Claims by adult children under the Inheritance (Provision for Family and Dependants) Act 1975 used to be relatively rare and there was for some time an argument abroad that these claimants, particularly if they were financially independent of the deceased and/or were able to work, had a “heavy burden” in convincing the Court that reasonable provision had not been made for them. More recently, and certainly from 1999 onwards when Espinosa v Bourke  1 FLR 747 was decided, there has been a more open approach. That said, most successful adult child claimants have been able to demonstrate either a financial dependency, or a serious financial need even where they are in employment.
The real difficulties often arise when either or both of these factors are combined with a significant, and often acrimonious, family feud which has resulted in the son or daughter [for convenience, and because the Wright case involved a daughter, I will refer only to “daughter” in future, but sons are of course included] being excluded from the parent’s Will. In fact, the two most interesting 1975 Act adult child cases this year, Ilott v Mitson and Wright v Waters, have both taken place against a background of irreconcilable family differences, though with rather different causes and different results.
The first question for the Court is not whether the person who made the will was being “reasonable” in the sense of recognising a general/moral obligation to leave money within the family: testatrices are still able to, and still do, leave all their worldly goods to the donkey sanctuary if they so choose. The only litigable question is whether the provision under the Will (including where there is no provision at all) is reasonably sufficient for the claimant’s maintenance. Making that decision involves considering all of the relevant facts under section 3(1) of the 1975 Act, which I’ll discuss in a moment. Continue reading
The judgment in Gill (sub nom. Gill v Woodall & Ors) is now up on Bailii here.
Still no sign of the Gill v RSPCA judgment on Bailii (or indeed on any of the subscription sites). This may be because the RSPCA has made it clear that it intends to appeal, a decision which has not gone down well either with Dr Gill (no surprise there) or within the wider third sector. Rosie Millard wrote an interesting colour piece in The Times a couple of weeks ago which made it clear that the main issues were: proprietary estoppel; testamentary capacity; want of knowledge and approval; and/or possibly the undue influence of Mr Gill Senior over his wife. It appears that the diagnosis of Mrs Gill was that she suffered from severe anxiety, I suspect an anxiety disorder of some kind. This is the first time as far as I am aware that severe anxiety has been found to vitiate independence of mind when making a will, so it would be most interesting to read the judgement. Expert evidence was called (and accepted) from Professor Robert Howard.
Dr Gill’s opinion of the RSPCA was described in the article as “less than charitable”, and things have not improved much since. The charity appears to be seeking part of its costs either from Dr Gill or the estate: Dr Gill’s lawyer says that they are looking to Dr Gill for a contribution to their costs, so presumably the RSPCA was successful on at least one of the issues. An article in The Lawyer noted that when the trial went on for longer than the estimated two weeks, Mishcon de Reya agreed a CFA with Dr Gill to allow her to continue.
Meantime, a war of words has broken out between the RSPCA and Dr Gill about how the litigation was conducted (see here) and in particular whether reasonable offers were made in the course of trial preparation.
Some third sector commentators wonder if the Society’s intention to pursue the case to appeal might be a public relations mistake: as Rosie Millard commented, it could end up looking less like a saviour to bunny rabbits and more like a fighting dog. In Up terms, not Dug but Alpha (and with his scary voice). From the comments I’ve seen on the web, although the majority of contributors support Dr Gill and are critical of the RSPCA, there is a sizeable minority — maybe one-third or so — who defend Mr Gill’s right to leave his money to charity if he wanted to (although they are less forthright about the RSPCA’s approach to the litigation).
The Law Commission has begun a consultation period on the existing intestacy provisions and the need for change. The areas causing concern under the existing rules include the fact that cohabitants are obliged to litigate under the Inheritance Act 1975 to get anything at all, and the problems with the definition of “dependency” under the IHA 75. There have also been difficulties where the deceased has left a surviving spouse as well as children, often from another relationship. The date for responding to the consultation paper is 28 February 2010 and you can find the main page on the Law Commission website here.
I haven’t forgotten my promise to round up commentary on the Christine Gill case, honest, but in the meantime I also just wanted to post this link on Bailii to the Baynes v Hedger case, which is also a case about provision for adult children, although Gill is more about testamentary capacity by the looks of it than IHA provision.
Christine Gill has succeeded in challenging the provisions of her mother’s will, by which the family farm worth approximately £2million and the remainder of the estate was left to the RSPCA. A link to the BBC report here. I will try to do a roundup of other commentary and any available reports over the weekend.
I have also found a Sky News report here which is a bit more helpful about the background.