So. You’re about to die, you want to distribute your assets. You make a will, it’s prepared by solicitors, it’s properly executed. No problems?
Yes problems.
The law steps in on many occasions to protect disappointed beneficiaries. Public policy will not allow children to go destitute so that a gold-digger can live in luxury for three months’ companionship. To that extent you are not allowed to give everything away as you see fit. And the same applies if you tell person A you will leave everything to them, they move heaven and earth to help you in your descent, and then you leave everything to person B.
That’s what happened in Clarke. Almost. Mrs Meadus has not yet died. But it helps to sort these things out when you’re alive.
The facts, as ever, are beguilingly simple, but disputed. Mr and Mrs Meadus had two children. Mr Meadus fell terminally ill in 1994; the Meaduses invided their eldest daughter, Mrs Clarke, to move in with them to help them. Which she did. Mr Meadus died in 1995. As a result of his will, and various tax planning moves, Mrs Clarke became the half-owner of the Meadus house, and Mrs Clarke sold her own family’s home to move in permanently.
The problem emerged later. There seems to have been a falling out. So to protect her position Mrs Clarke issued proceedings to declare that she had an interest in the other half of the Meadus house. Mrs Meadus opposed the application, saying it was part of a family trust.
Mrs Clarke said that the house could not be part of a family trust, because the Meaduses both promised she could have it when they were both dead; and Mrs Meadus had encouraged Mrs Clarke to move in on that basis. It would be unfair for her to lose out, and lose her home, because of a change of heart. Mrs Meadus disagreed with these particular submissions, and moved to strike the claim out as having no chance of success. Rather surprisingly, it was.
On appeal the claim was reinstated. The Court rightly held that there were serious issues of fact to consider, and this could only be done at trial. Striking out – summary judgment – is only if there’s no dispute on the law. Although the Master dealing with the case did find issues of law that were decisive, the High Court was most unimpressed. Mrs Clarke had done something to her disadvantage; she had uprooted herself from her own home, and then gone on to sell it, which meant that at the very least the Court owed her an inquiry as to whether that was a reasonable reaction, and was on the basis of a promise made to her. The Court therefore reinstated the claim – unless settled, it will proceed to trial. If Mrs Clarke wins, Mrs Meadus will not be able to leave her half of the house to whomever she chooses – that choice will have been made by the law, based on Mrs Meadus’ decisions some years ago.
So, there’s one case where the will of an individual may be overturned; the Gill case is one where a will was. The Claimant, Dr Gill, is the only daughter of John and Joyce Gill. In 1992 the Gills made mutual wills, leaving their property to the RSPCA. Mutual wills? The parties making the wills agree to make them identical, so that all of their joint property goes to the ones they have jointly chosen. Stops the widower taking all of the deceased wife's earthly goods and leaving them to a pneumatic hostess. What a mutual will does is prevent the survivor from changing the will. Which is what the Gills wanted. John Gill died in 1999; the mutual will doctrine thenceforth essentially froze Joyce Gill’s will as it was then, she could not change her mind as it would be unconscionable to do so. And she did not. She died in 2006 and the RSPCA claimed its share.
Dr Gill had other concerns though. She was not certain whether her mother truly knew what she was doing when she signed off her will. She thought that perhaps her father had brought too much influence to force her to sign, so it was not truly her “will”. More to the point, the same problem as Mrs Clarke reared its ugly head; Dr Gill could lose her home as a result – she had bought land next to the Gills’ farm and built there. She only moved there because she was promised the farm…
The Court found in Dr Gill’s favour; the RSPCA appealed. The Court of Appeal refused the appeal. Mrs Gill had constantly expressed the wish that the farm would be enjoyed by a line of Gills to the crack o’doom. Mrs Gill was somewhat agoraphobic and would not have been happy in a solicitor’s office having complex legal provisions explained to her. And she didn’t like the RSPCA much. Time-wasting townies, she called it. Why would a woman leave her million quid asset to a charity with which she did not sympathize and leave her daughter potless? The Court found that John Gill basically overbore Joyce Gill’s will (literal and figurative sense) and pretty much forced her to sign away the farm. Therefore, regardless of what was written down, Mrs Gill’s will was not truly her will.
Not much in the way of new law there. Merely stating what already happens in more conventional cases. But it demonstrates the importance of getting things right in wills sometimes years before you need to rely on them…
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