The parties
- The Claimant, Dr Christine Angela Gill ("the Claimant") is the only child of John Arthur Gill deceased ("Mr Gill") and his wife, Joyce Mary Gill deceased ("Mrs Gill").
- The First and the Second Defendants, Stephen Woodall and Stanley Anthony Lonsdale are partners in the solicitors firm of Hunt & Wrigley and the Executors appointed by the will of Mrs Gill dated the 27th April 1993.
- The Third Defendant, the Royal Society for the Prevention of Cruelty to Animals, is the sole residuary beneficiary of the estate of Mrs Gill pursuant to the terms of her will.
Representation
- The Claimant is represented by Miss Tracey Angus, of Counsel, the First and Second Defendants have not been represented at the trial of this action, have not participated in the trial and have adopted a position of neutrality in relation to the claims of the Claimant and the defences of the Third Defendant. The Third Defendant is represented by Mrs Elspeth Talbot Rice, Queens Counsel.
The Claimant's case summarised
- By the terms of Mrs Gill's will she left the whole of her estate to her husband, Mr Gill, and, in the event of him predeceasing her, to the Third Defendant.
- The Claimant disputes the validity of Mrs Gill's will on two grounds. They are:-
1. At the time Mrs Gill executed the will she did not know and approve its contents;
2. Mrs Gill executed the will as a result of coercion or pressure exerted by Mr Gill such as to overcome Mrs Gill's volition with the consequence the will was not the result of the free volition of Mrs Gill.
- The Claimant advances an alternative claim in proprietary estoppel based upon an assertion that she expected to inherit Potto Carr Farm ("the Farm"), the farming business carried on therefrom and the assets of that farming business, including the money which it generated, which expectation was encouraged by Mr Gill and Mrs Gill and the Claimant acted to her detriment in reliance upon that encouraged expectation.
The Third Defendant's case summarised
- The claims of the Claimant are fully defended by the Third Defendant. In respect of the claim in proprietary estoppel, the Third Defendant also contends that if an equity has arisen in favour of the Claimant (which is denied), the transfer to the Claimant of the Farm, the farming business, its assets and monies would be disproportionate in the context of such detriment as the Claimant might prove to have suffered in reliance upon such expectation as the Claimant proves was encouraged by Mrs Gill. The Third Defendant, thus, relies upon the legal principle of the Court granting the minimum equitable relief to do justice, or as is necessary, to avoid an unconscionable result.
The Claimant's and the Third Defendant's detailed cases
- The claims of the Claimant and the defences raised by the Third Defendant are fully detailed in the Amended Particulars of Claim, dated the 7th of December 2007, the Amended Defence of the Third Defendant, dated the 11th of January 2008 and the Claimant's Reply thereto, dated the 11th of July 2008.
The background
- On the 23rd of February 1917 Mr Gill was born and on the 19th of July 1924 Mrs Gill was born. They married on the 25th of October 1947.
- Mr and Mrs Gill had one child, the Claimant, who was born on the 28 of May 1950.
- In 1952 Mr and Mrs Gill purchased, as joint tenants, Brookfields, a Farm near Girsby, North Yorkshire.
- In 1968, the Claimant left Northallerton Grammar school and commenced her further education.
- By September 1973 the Claimant had successfully completed her degree course for a BSc in Mathematics and Computing and had commenced to read Mathematics at Leeds University.
- On the 13th of September 1975 Mr and Mrs Gill purchased the Farm situated at Ingleby Cross, North Yorkshire, as joint tenants but they continued to reside at Brookfields.
- On the 6 of June 1978, Mr and Mrs Gill purchased a field, known as Hartley Field, which was part of Fagdale Hall Farm, as joint tenants.
- The Claimant pursued her academic career at Leeds University culminating in the completion of her Ph.D. course in 1979. This was followed by her appointment to the staff of the University in June 1979, a research fellowship in 1980 and the post of Lecturer for a 3 year probationary period with that post being confirmed in March 1983.
- In June 1986 Mr and Mrs Gill agreed to sell the land at Brookfields to a Mr Robson but they continued to reside in the farmhouse there.
- On the 14* of July 1986 the Claimant married Dr. Andrew Baczkowski ("Dr Baczkowski").
- On the 7th of November 1986, the Claimant and Dr Baczkowski purchased White House Farm, Trenhoime Bar, which adjoined the Farm, as joint tenants at a price of £33,000.00 of which sum £13,000.00 was provided by Mr and Mrs Gill.
- Between November 1986 and June 1987 a new Farmhouse was constructed at the Farm and Mr and Mrs Gill moved out of Brookfields into that new Farmhouse upon its construction being completed.
- On the 27th of April 1993, Mr and Mrs Gill each executed wills which had been prepared by Mr Argyle, then a partner in the firm of Hunt & Wrigley solicitors, which wills may be conveniently be described as "mirror wills".
- By the terms of each will the maker left all his/her property to the other spouse absolutely for his/her sole use and benefit providing he/she survived the maker for a period of one month. If they did not, or if he/she predeceased the maker of the will, all of the maker's property would vest in the appointed trustees to pay funeral and testamentary expenses, inheritance tax and debts and to hold the residue upon trust for the Third Defendant.
- Paragraph 5 of each will reads as follows;-
1. "I DECLARE that no provision is hereby made for my daughter (the Claimant) because I feel that she has been well provided for by me over a long period of time".
- In the summer of 1993 the Claimant and Dr Baczkowski moved into a new house which had been constructed at White House Farm.
- On the 7th June 1997, the Claimant gave birth to Christopher.
- On the 19th April 1999 Mr Gill died aged 82 years.
- On the 21st August 2006, Mrs Gill died at the Friarage hospital, Northallerton, at 18.55 pm.
- On the 1st September 2006, the Claimant instructed Freeman Johnson, solicitors.
- On the 19th of October 2006, a letter of claim under the Inheritance (Provision for Family and Dependants) Act 1975 was sent by Freeman Johnson on behalf of the Claimant to the Executors.
- On the 18 of January 2007 Northallerton Estate Agency provided a probate valuation of the Farm at £1.2 million to £1.4 million.
- On the 16th of April 2007 probate of Mrs Gill's will was granted to the First and Second Defendants.
- On the 10th of October 2007 the Claimant instructed Mishcon de Reya in substitution for Messrs, Freeman Johnson.
- On the 6th of December 2007 the First and Second Defendants accepted an offer to sell the farmhouse and 55.75 acres of land forming part of the Farm to Mr Robinson at a price of £1,060,495.00 and 219.9 acres of land forming part of the Farm to Mr Stephen Dawson for £1,089,505.00.
- On the 7th of December 2007 the present action was commenced and the Claimant applied for an order preventing the First and Second Defendants from disposing of the Farm until the trial of this action.
- On the 11th of February 2008 a Consent Order recording the parties' undertakings was made on the Claimant's application which prevented the disposal of the Farm until the determination of this action.
- The trial commenced on Monday the 15th of July 2008 and was finally concluded with the receipt of certain final submissions on the 30th of April 2009.
- No issue arises in this case as to the capacity of Mrs Gill when executing her will. The Claimant contends, inter alia, that Mrs Gill suffered from an extreme anxiety disorder which did not result in lack of capacity to make the will but did result in an inability to know and approve the contents of the will when she signed it on the 27th of April 1993.
The evidence
The Claimant's evidence in chief
- Three witness statements of the Claimant dated the 8th of May 2008, the 25th of June 2008 and the 8th of July 2008 respectively, were admitted as her evidence in chief.
- It is not necessary to recite the contents of those three witness statements in their entirety in this Judgment. Though I shall make reference to only parts of those witness statements or summarise parts thereof, I have paid careful regard to the whole of the contents of each witness statement.
- The evidence in chief of the Claimant addresses the nature and extent of the work the Claimant carried out at Brookfields Farm on attaining the age of 13 years and continued to carry out until she attained the age of 18 years in 1968 whereupon she left school and commenced a course at Leeds School of Architecture living in lodgings in Leeds.
- Her evidence deals with her relationship with her parents, with whom she says she got on well. She describes Mr Gill as not being a talkative man. He rarely discussed what he was feeling. He was somewhat old fashioned in his outlook, hardworking, determined and stubborn. The Claimant states that at times Mr Gill could be domineering and on occasions his temper would get the better of him leading to an outburst of fury. Those outbursts could be triggered by a comment made by Mrs Gill or frustration which Mr Gill felt at a piece of machinery which was not working or by him being unable to find the dog. As Mr Gill became older and his health deteriorated his irritability grew worse so that he would fly into a rage at the slightest provocation. According to the Claimant this worried Mrs Gill a great deal and she would try to avoid any confrontation with Mr Gill particularly after Mr Gill's aortic aneurysm operation which took place in 1987. Mrs Gill was concerned that if Mr Gill became angry he might have a heart attack, a stroke or another aneurysm.
- Mrs Gill's personality was very different from that of Mr Gill. According to the Claimant she was extremely fearful and insecure. The Claimant's maternal grandmother told the Claimant that Mrs Gill had been timid as a child and, as a teenager, she would get dressed to go out, come downstairs, and then turn back as she would be unable to leave the house. In reliance upon what Mrs Gill and the Claimant's maternal grandmother had told her, it seems that during her 20s Mrs Gill enjoyed a period of relative boldness and bravery. She met and married Mr Gill. She drove a taxi in their taxi business but when Mr and Mrs Gill began farming, in about 1948, Mrs Gill's old insecurities returned and she came to depend heavily on Mr Gill and, as the Claimant grew older, upon the Claimant.
- Mrs Gill suffered from poor health, in particular biliousness and migraines. During the Claimant's teenage years Mrs Gill's migraine attacks became more frequent which meant increased amounts of care from the Claimant. Mrs Gill would retire to her bed for days at a time with a migraine which would end in a bilious attack after which she would recover. During these periods when Mrs Gill was ill, the Claimant would take care of her as well as looking after the house and cooking for Mr Gill.
- According to the Claimant Mrs Gill suffered from various phobias which became marked as time passed. Mrs Gill was frightened of being left alone. As the years went by and Mr Gill needed Mrs Gill's help less, Mrs Gill's fear of being left alone became more obvious and problematical. If the Claimant was not with Mrs Gill in the house, Mrs Gill would follow Mr Gill around the Farm even if there was no work for Mrs Gill to do. At the end of the day she would return home with Mr Gill and begin her household tasks. Similarly, unless the Claimant stayed with Mrs Gill at home, she would always accompany Mr Gill if he left the Farm for any reason but would remain sitting in the motor car while Mr Gill attended to his business.
- The Claimant would spend a great deal of time "mother sitting" so that Mr and Mrs Gill could get on with things separately. Mrs Gill did not like to travel far from home and she would not travel anywhere by herself. She was only prepared to drive the car by herself if she was able to follow behind Mr Gill driving the tractor. Mrs Gill would never drive the motor car to see her parents or brother and once the Claimant was old enough to drive she would drive Mrs Gill everywhere she needed to go.
- Mrs Gill would go to extreme lengths to avoid meeting or talking to people outside the family. She would not talk to people on the telephone. She would avoid going shopping but would sit in the car while Mr Gill bought groceries. She avoided visiting the doctor and would not have a doctor visit the house, Mrs Gill's anxiety about meeting people meant the Claimant could not have friends visit her at home. If anyone did come into the house, Mrs Gill would rush upstairs to "hide" in the bathroom. This made it difficult to have workmen to carry out repairs inside Mr and Mrs Gill's house. If there were jobs that needed doing around the house which Mr Gill or the Claimant or, later on, Dr Baczkowski could not do, those jobs did not get done at all. Mr Gill had to entertain business associates outside or in the Farm buildings or even sitting in his motor car. When Mrs Gill was forced to speak to someone outside the family she would say as little as possible and would usually pay no attention to what was being said to her so that afterwards she would ask Mr Gill or the Claimant to tell her what had been said.
- Mrs Gill also had great difficulty in making a decision about anything whether important or trivial. She could not decide about household furnishings or decorations or what clothes she wanted to buy or even what to wear if she had to go out. If something was bought for Mrs Gill she would want it taken back.
Mrs Gill's inability to decide upon anything meant that Mr and Mrs Gill's house was never completely furnished. It also meant that Mr Gill made all decisions concerning Mr and Mrs Gill's financial affairs and the Farm which Mr Gill tended to do without consulting Mrs Gill.
- Mrs Gill's various phobias and insecurities made life difficult for Mr Gill and the Claimant. The Claimant and Mr Gill organised their lives around the fixed points of that which Mrs Gill could or could not do. The Claimant gave an example of Christopher's 4th birthday when the Claimant persuaded Mrs Gill to travel with her and Christopher to Great Ayton to buy ice creams and walk along the river. Mrs Gill went but when they arrived she would not get out of the motor car. She just sat in the car waiting for the Claimant and Christopher.
- As well as having anxieties, Mrs Gill had a number of obsessive traits. She would wash the soles of her shoes after going outside even if she had just been hanging out the washing. She had her own plate, cup and cutlery and would take them with her if she was going to see her parents, her brother or the Claimant and she used to wear washing up gloves all the time even when she went out in the car.
- When cross examined by Mrs Talbot Rice, the Claimant told the Court that Mrs Gill volunteered for the land army in 1942, went on a training course with other people and then worked on a local farm with other people until 1945. After marrying Mr Gill in 1947, Mrs Gill drove a taxi and, consequently, came into frequent and regular contact with many strangers. In 1948 the taxi business was sold and the proceeds of sale were utilised in the purchase of a small holding near Ripon. Mrs Gill was bright and active when young. She was interested in life on the farm, she took an interest in politics and was critical of the labour government. Mrs Gill, however, became more reserved. By the 1960s she had become uneasy about staying at home on her own. She became anxious about social events and started to avoid them. Though Mrs Gill would travel in the car with Mr Gill to parents evenings at Northallerton Grammar school she would stay in the car whilst Mr Gill went into the school. Mrs Gill was, according to the Claimant, beginning to withdraw. By the 1970s Mrs Gill got worse. She did not go to social events and she would not go to funerals or weddings. By the 1980s the Claimant was doing more work for her. The Claimant would do the shopping, she would purchase Mrs Gill's clothes and eventually she purchased her shoes for her. Mrs Gill's withdrawl was a gradual process and she became progressively debilitated.
- The Claimant was referred to a number of letters written by Mrs Gill over the period the 12th of January 1970 to 1978. The contents of those letters referred to journeys to Barkers Departmental Store in Northallerton, to Barclays Bank at Stockton-on-Tees, to Charles Clinkards shoe shop and to Comet the electrical retailer at Stockton-on-Tees.
- The Claimant's testimony when cross examined was that Mr Gill would have accompanied Mrs Gill on these journeys, that it would be Mr Gill who would go into the bank and the various stores and who would conduct the necessary business and purchases there. However, the Claimant accepted that throughout the 1970s, 1980s and 1990s Mrs Gill went to the dentist for treatment. It appears from the contents of letters, copies of which appear in trial bundle E4, that in 1971 Mrs Gill was able to walk the length of Northallerton High Street, enter Uptons store, a shop next to Maynards and inspect goods on what was a shopping expedition. In December 1971, Mrs Gill went shopping in Darlington. In January 1972 she went shopping in the sales in Darlington for an hour. The Claimant fully accepted that Mrs Gill would go to the shops a few times a year in the early 1970s. Somewhere between 1975 and 1978 she went into Charles Clinkards, the footwear store, and purchased a pair of shoes. The Claimant stated that Mrs Gill would not drive herself to the shops. She would be driven by Mr Gill who would accompany her and, apart from the odd occasion, would accompany Mrs Gill when she went on a shopping expedition. However, according to the Claimant, Mrs Gill would avoid going shopping. According to the Claimant, in the 1970s Mrs Gill would sit in the car whilst Mr Gill did the shopping for groceries. Eventually Mrs Gill avoided shopping altogether but in the 1970s she would try and buy her own clothes and shoes and Christmas presents for the Claimant's grandparents. In the 1980s, 1990s and the 2000s Mrs Gill would not go shopping and it was the Claimant who did her shopping for her. It is to be noted that the 99 letters in trial bundle E4 cover the years 1971 to 1978. The Claimant accepted that Mrs Gill was able to talk, to confront and to remonstrate with people in 1971 and 1972. She also accepted that in the 1970s, Mrs Gill dealt with people who attended at her home including workmen and trades people. In the 1970s and early 1980s Mrs Gill was, according to the Claimant, confident in her own home. She was capable of taking in what a visitor, who was a stranger, said to her and she was also capable of dealing with poachers on the farmland. In the latter case, she kept an eye on the potential poachers from her home and there is a record of her doing this in November 1986. In March 1973 she had a conversation with solicitors on the telephone in relation to the administration of her mother-in-law's estate. Mrs Gill understood what was said and dealt with the matter entirely rationally. Mrs Gill granted a tenancy of former buildings at the Farm to Mr Howard Kitching the terms of which had been discussed between the Claimant and Mr Christopher Arundel of Messrs. Addisons, Chartered Surveyors, in the presence of Mrs Gill. The written lease was prepared by Mr Arundel who sent it by post to Mrs Gill for signature and Mrs Gill signed the lease, dated the 1st of September 2000, in her own kitchen in the presence of the Claimant who then took it to her own home where her mother-in-law signed the Deed as a witness to the signature of Mrs Gill. The Claimant could not witness Mrs Gill's signature and, according to the Claimant, Mrs Gill would not permit anyone to enter her house for the purpose of witnessing the same.
- Mrs Gill also signed the accounts for the farming business. Those accounts were prepared by Hanby & Co. They were then sent to Mr and Mrs Gill at their home address where they were signed by Mrs Gill. According to the Claimant, Mrs Gill did not check the accounts but she knew they were accounts for the business and she showed no disinclination to sign them. In trial bundle E5 are copies of the balance sheets and trading accounts for Mr and Mrs Gill for the years 1993 to 1997 and their financial statements for the year ending the 31st of December 1998. It is to be noted that there are also included copies of the financial statements for Mrs Gill solely for the years 1999 to 2004 which bear the signature of Mrs Gill.
- In response to questions posed by Mrs Talbot-Rice, the Claimant stated that Mrs Gill knew her own mind and expressed it when it came to her medical treatment. She also made decisions in relation thereto. Consideration of Mrs Gill's medical records, copies of which are included in trial bundle E2 evidence the following. On the 12th of March 1999, Dr Ramsden, GP, advised Mrs Gill quite strongly that he thought hospital admission was the only sensible way to proceed in relation to her cellutitis condition but she refused such point blank. According to the Claimant, Mrs Gill refused to go to hospital because her medical condition was the lesser evil. Mrs Gill's fear of going to hospital overrode the common sense need to have her leg treated more expertly.
- The medical records also reveal that on the 16th of March 2000, Mrs Gill attended the outpatient department of Friarage hospital at Northallerton where she was seen by a clinical nurse specialising in rheumatology. In the course of that appointment, Mrs Gill explained she was reluctant to take any tablets on a regular basis but was keen to try a herbal remedy.
- The Claimant accepted that this was Mrs Gill making a clear decision which was hers to make.
- In a nursing report in respect of Mrs Gill there is an entry for April 2000 which records her refusal to take G.T.N, spray as she did not wish to experience the side effects.
- The Claimant agreed with Mrs Talbot-Rice that Mrs Gill had refused to take the spray and that her decision had been made against the medical advice which she had received. The Claimant also accepted that Mrs Gill provided a rational reason for the decision made by her to decline the medical treatment advised. The Claimant stated that though Mrs Gill took decisions she was indecisive in many respects in relation to other aspects of her life and in respect of medical treatment she was indecisive in that she adopted the least troublesome course of action.
- On or shortly before the 22nd of February 2002, Mrs Gill was seen in the outpatient clinic of Friarage hospital when she was advised about an investigation of her colon. However, Mrs Gill expressed the view that she would not like to have anything done further either in the form of a colonoscopy or a barium enema.
- The Claimant accepted that Mrs Gill again had taken a decision not to undergo the invasive treatments advised by the doctor. She also accepted that Mrs Gill reversed that decision after a number of meetings with Dr. Walters over the period February 2002 to June 2002 and that Mrs Gill often questioned professionals such as Dr Walters. The Claimant told the Court that Mrs Gill did not ask very searching questions. That quite often it was the Claimant, who accompanied Mrs Gill, who would ask the intelligent questions of the professionals and later Mrs Gill would then ask the Claimant to explain what had been said. Mrs Gill, in some ways, could ask questions but she did not take in the responses to those questions. The Claimant agreed with Mrs Talbot-Rice that Mrs Gill was able to ask questions notwithstanding she was asking them of a stranger, that she knew her own mind and she voiced it. The Claimant further accepted that in the home Mrs Gill would argue with, and stand up to, Mr Gill to a point. Mrs Gill would not always do what Mr Gill asked her to do and that included legal matters. When Brookfields Farm was sold in June 1987 Mrs Gill refused for some time to sign the conveyance thereof.
- Both the Claimant's marriage and Mr Gill's funeral were small quiet affairs with few people invited. The Claimant told the Court this was because Mrs Gill would not otherwise attend. She would have wanted to attend the Claimant's marriage but she would not have been able to get herself to it if there had been many people attending. Mrs Gill did not wish to attend Mr Gill's funeral as she did not wish to be seen in public. Even the undertakers and the Vicar were a strain for Mrs Gill. However Mrs Gill did attend 1 or 2 of Christopher's summer concerts and his winter pantomimes but she could not bring herself to attend others. According to the Claimant she wanted to but she just could not do it. She could not get ready, she could not face people, she could not talk to people. The Claimant took Mrs Gill to Christopher's summer concerts and the pantomimes. Mrs Gill wanted to go but she found great difficulty in actually just doing so. She just couldn't face things. Apart from the 1 or 2 summer concerts and pantomimes, though Mrs Gill tried to go she capitulated at the last minute and just couldn't bring herself to get into the car. The Claimant accepted that Mrs Gill did attend Christopher's pantomimes over the Christmas periods of 2002, 2004,2005 and 2006.
- The Claimant described the sequence of events when Mrs Gill attempted to attend Christopher's summer concerts but failed to do so. The Claimant's evidence was that the concerts usually started about 2.00 in the afternoon at Christopher's school. In order to go and get a seat which had a view of the pantomime one had to go just after 1.00 pm. Mrs Gill would have to get ready and dress in appropriate things. In order to achieve this she would get up early that morning and worry and plot and plan and fidget and she never had time for lunch if she had to get out of the house by 1.00 pm. She would just take all morning to get ready. She would do her hair 50 times and she would change her mind about what to put on 50 times even though the Claimant told her -"well just put on that and that and then we can go". Mrs Gill sometimes would be in a complete state of exhaustion as a result of her activities and she would sit and say - "I just cannot do it". Sometimes, as a result of coaxing on the part of the Claimant, Mrs Gill would manage to attend the concert. At other times she would get to what the Claimant described as "breaking point" whereupon the Claimant would give in and Mrs Gill would tell her to go on her own.
- When Mrs Gill got to breaking point she would appear distressed and anxious, cornered and weak. She would sit down. She would not be able to stand. She would just be like an empty cloth doll. The Claimant described her as being completely down with all the stuffing knocked out of her somehow. Mrs Gill would have no will and she would be upset with herself because she would want to do it but she was just incapable of doing so. The Claimant would acquiesce with Mrs Gill's wishes and she would eventually go by herself.
- In July 2005 the Claimant had a 10 night break and Mrs Gill was admitted to a nursing home in Bedale. The Claimant provided a social profile in respect of Mrs Gill which reads:-
"Mum is quite well but rather frail. She looks after herself at home. She likes to be active but has little stamina. She is quite shy and is quite a private person".
- A brief medical history was completed which reads :-
"Suffers only from old age! Eye sight affected by aged related macrophilia, has grumbling varicose veins (awaiting surgery)".
- It was put to the Claimant that she did not tell the nursing staff or the admission staff at the Bedale nursing home that Mrs Gill suffered from anxiety to the degree which the Claimant described in her witness statements.
- The Claimant gave evidence that she did not inform the staff of Mrs Gill's anxiety because she wasn't being treated for anxiety by the doctors. In relation to the social profile provided by the Claimant, she gave evidence that this was an understatement of what Mrs Gill was like which the Claimant provided out of respect for Mrs Gill and her sensibilities. The Claimant stated that Mrs Gill was sufficiently private not to want people to know anything about her at all so the Claimant said as little as she could without trying to give completely the wrong impression that she was a perfectly normal, sociable, active person that they wouldn't have any problems with or anxieties about. The Claimant told the Court that she did not divulge details that she knew Mrs Gill would not have wished her to divulge and which the staff did not need to know. Mrs Talbot-Rice put it to the Claimant that if Mrs Gill was as severely disabled mentally as the Claimant was asserting the staff would have needed to know such in order to deal with her appropriately. The Claimant's response was that she did not believe the staff needed to know any more than the Claimant told them. Mrs Talbot-Rice then put it to the Claimant that what she had written about Mrs Gill's social profile in July 2005, approximately a year before Mrs Gill died was an accurate representation of what Mrs Gill was actually like and that since Mrs Gill's death the Claimant had exaggerated to an extraordinary degree the shyness from which Mrs Gill suffered. The Claimant stated that she would not accept such.
- Mrs Talbot-Rice drew the Claimant's attention to the instructions which the Claimant gave to the nursing home staff in respect of the care of Mrs Gill. A copy of the care plan lies at page 63 of trial bundle E2. The express aim of the care plan was to keep Mrs Gill as independent as possible but encourage her to mix and the planned care reads:-
"To give encouragement to mix with others as much as possible".
- The Claimant denied that the care plan had been written after discussions with herself though she accepted that she had discussed with the nursing home staff what was anticipated to happen to Mrs Gill during her 10 day stay at the nursing home. The Claimant was emphatic that she did not suggest to the staff that she wanted Mrs Gill to be encouraged to mix with other people. The Claimant told the Court that she knew her mother. She knew she would want to go and stay in her room and not come out until the stay was over.
- Mrs Talbot-Rice put it to the Claimant that on the Claimant's evidence the nursing home staff had simply made this entry up, that the Claimant hadn't asked this of the staff so the staff had just made it up out of the blue. The Claimant told the Court that she had not said that she wanted Mrs Gill to be encouraged to mix. It was quite clear when the Claimant arranged for Mrs Gill to go to the home that Mrs Gill would want to be left alone and that she was not used to mixing with people and that she did not wish to mix with people. The Claimant confirmed that, on her evidence given to the Court, mixing with other residents in the care home would have been an appalling prospect for Mrs Gill. Mrs Talbot-Rice suggested to the Claimant that whilst Mrs Gill was shy and reticent in her later years she was perfectly able to engage with others. The Claimant's answer to that was - "no, my mother was an extreme case. She was very difficult to manage".
- Under questioning from Mrs Talbot-Rice, the Claimant confirmed that Mrs Gill was perfectly able to engage with professionals, she was also well able to express her own view and make her own decisions. The Claimant also stated that up to a point Mrs Gill made decisions against what she had been urged to do by others but stated that Mrs Gill permitted herself to be overridden and that she didn't always stick to her established view. Mrs Gill would be led and would change her mind and do quite the opposite of what she wished to do. Having given that evidence, the Claimant then confirmed that farm machinery, which was desired to be sold but which Mrs Gill wished to be retained, was in fact retained and not sold. The Claimant expressed the belief that Mrs Gill was trapped inside herself, she did not like to be left alone but at the same time she did not want to be with other people.
- It was put to the Claimant that if Mrs Gill had a fear of people then putting her into a care home was the antipathy of what she required. Mrs Gill was being put into an environment filled with people rather than keeping her away from that sort of environment. The Claimant explained that by ensuring that Mrs Gill could remain in her own single room, and have her meals in that room, she had limited Mrs Gill's environment to as few people around her as could be achieved and yet with security.
- The Claimant told the Court that Mrs Gill informed her that she thought she and Mr Gill had left everything to each other. The Claimant did not believe that Mrs Gill knew that upon the death of the survivor of she and Mr Gill, their combined estate would go to the Third Defendant.
- The Claimant had prepared a document headed Comments on Will of Joyce Mary Gill - September 29, 2006. She had written this document within 6 weeks of Mrs Gill's death. At page 3 of this 57 page document is written the following: -
"The will made in 1993 was a mirror will and was clearly (to me) all of my father's doing, not least because my mother was not capable of carrying out such a task. She went along with it, I believe, out of weakness and/or perhaps of fear of upsetting my father".
"I also suspect that towards the end of her life she forgot the precise nature of this will as her attitude towards me and her total trust in me was inconsistent with such a will".
- Mrs Talbot-Rice put it to the Claimant the part of that document prepared by her which is last quoted above presupposes that Mrs Gill knew what was in her will because the Claimant was saying, in the document of the 29th September 2006, that the Claimant considered Mrs Gill had forgotten what was in her will. Consequently, at the time she must have known what was in the will but she had forgotten it.
The Claimant's response to this was that the purpose of her writing the document of the 29th September was to satisfy her former solicitors, Freeman Johnson, who asked her to set down everything that she and her husband had done for Mr and Mrs Gill, and that this was only a few weeks after Mrs Gill's death and the shock of the will. The document therefore contained various speculations and, what the Claimant would almost call, emotionally charged ramblings in that she was casting herself about to try and explain what had happened. However, later in the document, at page 24 thereof, there is the following statement by the Claimant:-
"In her later years my mother became forgetful of "unpleasant" things; examples include forgetting that I was going out to the theatre after I had told her; forgetting that she had signed consent forms for her cataract operation, even though it was only a matter of a few weeks between the consent given and attending for the pre-operation assessment. It is this that makes me suspect that eventually she genuinely forgot what was in the will".
- The Claimant's explanation was that this was just emotional ramblings. That she was casting about in her mind just trying to explain it and that she was still in shock.
- The Claimant was taken to clause 5 of Mrs Gill's will. The will is essentially a one page document and clause 5 sets out the declaration:-
"I DECLARE that no provision is hereby made for my daughter Christine Angela Baczkowski because I feel that she has been well provided for by me over a long period of time".
- The Claimant gave evidence that this declaration was incorrect. The Claimant, however, accepted that Mr and Mrs Gill had provided for her throughout her 11 years of student life between 1968 and 1979 and that in 1986 they made a gift of approximately £13,000.00 which enabled the Claimant and Dr Baczkowski to buy White House Farm free of mortgage. The Claimant also accepted that Mr Gill had masterminded the purchase of White House Farm. The Claimant did not accept that Mr and Mrs Gill would have seen themselves as having set the Claimant up in White House Farm. In 1993 the Claimant had no dependents. Both she and Dr Baczkowski had incomes from Leeds University.
- It was the Claimant's evidence that Mrs Gill would never have signed a will with clause 5 in it but she would not say the same about her father, Mr Gill. Mr Gill, according to the Claimant, was capable of making the declaration and sticking to it but the Claimant did not believe her mother was. However, the Claimant could not explain why Mr Gill would have included the declaration in his will. The Claimant could not explain why her father, Mr Gill, would wish to make a will which disinherited his only child of whom he appeared to have been fond and whom he kept about him all her life.
- The Claimant admitted that one of the reasons she expected to inherit the Farm was her belief that it was, and is, her birth right to inherit the Farm. The Claimant knew of no one who had been left out of a will and not inherited anything from their parents let alone a Farm. In the case of all the farming people she knew the Farm had been passed down from one generation to the next. The Claimant was clear in her evidence that if she had been told that there was no mention of her in Mrs Gill's will she would not have made so many personal sacrifices to help so much with the Farm.
- It was accepted by the Claimant that in the document dated the 29 September 2006, which was written by her, she did not claim that she had been told or led to believe by either parent that she would inherit the Farm. She also accepted that there was nothing to that effect in the letters written by Mrs Gill to the Claimant. Mr and Mrs Gill did not discuss with the Claimant what they intended to do by their wills. The Claimant wrote a letter, dated the 6th of December 1999, for signature by Mrs Gill, in which she described Mrs Gill as executor and sole beneficiary of Mr Gill. The Claimant's evidence was that she understood Mrs Gill would be the executor of Mr Gill and she knew from what Mrs Gill had told her that Mrs Gill was the sole beneficiary of Mr Gill's will. The Claimant raised with Mrs Gill the issue of wills. She asked what was in the will of Mr Gill and Mrs Gill told her that she thought they had left everything to each other or - "I think it leaves everything to each other".
- On the 17th/18th of August 2006, Mrs Gill was admitted to hospital for further palliative care. On the 21st of August at 10.07 am, the Claimant telephoned Hunt & Wrigley and informed them that "her father had died in April 1999 having made a will which was not proved. Mrs Gill never made a will. The Claimant had never seen a copy of Mr Gill's will and did not know she was mentioned in it".
- When asked by Mrs Talbot-Rice why had she made the telephone call, the Claimant's evidence was that she was anxious about Mr Gill's will because it had never been proved. Mr Hall of Hunt & Wrigley attempted to contact the Claimant and they then spoke on the 22nd of August.
- Mr Hall's file note of the conversation reads as follows:-
"NAJH engaged in receiving a returned call from Christine Angela Gill on the 22nd August 2006. Her mother had died in the Friarage yesterday and she really wanted to know what the position was. She knew that her mother had a will but NAJH saying that he was not at liberty to disclose the terms of that will at present. She will drop off the Death Certificate and so on tomorrow and NAJH will then contact her because there are some urgent matters that need dealing with and in particular there is a Farm contract on Potto Carr Farm which will need to be considered and various bills which she thought required immediate attention. She appreciated that NAJH had to be careful what he said at this stage. She knows that the Partners in the firm are the executors. She said that obviously she wouldn't want to be paying anything if everything had been left to the Dogs Home but NAJH not being drawn on that point.
Time engaged on the telephone - 6 minutes".
- When it was put to the Claimant that she knew her mother had made a will and that the Partners of Hunt & Wrigley were the executors, the Claimant stated that she did not know who the executors were and she did not know Mrs Gill had left her estate to the Third Defendant. The Claimant accepted she had made the statement - "obviously she would not want to be paying anything if everything had been left to the Dogs Home". Her evidence was that this was a chance expression she had used. It was made partly as a result of embarrassment and partially as a consequence of irritation. It was an unfortunate remark but the Claimant, when she uttered it, did not know the contents of Mrs Gill's will and did not know that she was not to be Mrs Gill's Executrix.
- The Claimant did not accept that at the time of this telephone conversation she knew she was not going to inherit the Farm. She did not accept the suggestion that she did nothing on the strength and expectation that she would inherit the Farm because she knew that she was not going to. On the 23rd of August the Claimant met with Mr Hall at Hunt & Wrigley's premises and was told by him that she had not been provided for in the will of Mrs Gill. Upon Mrs Talbot-Rice putting it to the Claimant that her reaction to this statement was one of anger and confrontation, not one of shock and disbelief, the Claimant's evidence was that she was not angry, she was shocked and she was stunned. By the end of September 2006 the Claimant had written the document entitled Comments on the will of Mrs Gill. She had instructed Freeman Johnson solicitors on the 25th of August 2006. In the 56 pages of the document, dated the 29th of September 2006, there is no reference to any assurance or promise which had been made by either Mr Gill or Mrs Gill in relation to the Farm or anything else. The Claimant told the Court that Mrs Gill had assured her on several occasions - "she would have the Farm" and that she had said to her -"you will always have the Farm". When the Claimant had left school and she was discussing with Mrs Gill her future, whether she should stay at home or whether to go to college, Mrs Gill had said - "whatever (the Claimant) did she would always have the Farm". When Mrs Talbot-Rice put it to the Claimant that Mrs Gill simply meant by this statement that the Claimant could always come back to the Farm, in other words she would always have somewhere to live, the Claimant responded that she did not believe Mrs Gill meant that because they were talking about how the Claimant would provide for herself. They were talking about livelihood; where the Claimant would get her income from, how she would provide for herself at pension age and all through her life. The idea that the Claimant would always have the Farm was one which meant as part of, at least, her livelihood she would have the Farm to rely upon. Similar conversations took place between Mrs Gill and the Claimant after the Claimant left University because where she was going to work and the job she chose to do were going to influence the Claimant's life. Mrs Gill made it clear that whatever the Claimant did she would always have the Farm to rely upon. In 1968 the Farm referred to was Brookfields. In the 1970s it was both Brookfields and the Farm and subsequently it was the Farm.
- In April 1999 when Mr Gill was an in patient at the Friarage hospital he discussed with the Claimant what Mr Wardman would do on the Farm and how much income that would provide for Mrs Gill. The Claimant's evidence was that this implied to her that Mr Gill did not intend the Farm to be sold. Mr Gill's concern was that the Farm should carry on and the best way for it to proceed, according to him, was to renew Mr Wardman's contract.
- The Claimant could not account for the contents of Mr Gill's will given the assurance he had made to the Claimant over the years in relation to the Farm.
- The Claimant gave evidence that when she married Dr Baczkowski Mr Gill asked her - "will he make a Farmer?" and that this was a representation to her that she would inherit the Farm because it impliedly suggested that her husband was going to have a farmstead to Farm. It carried a specific interpretation to her that she and Dr Baczkowski would eventually be the Farmers. This was not the first assurance she had that she would inherit the Farm. In the 1970s Mrs Gill said to the Claimant - "it is a pity you couldn't many the man next door because then we could put the two farms together and the farms would merge".
- This, according to the Claimant, would only have been possible if Mr Gill had intended the Claimant to have the Farm. Another statement relied upon by the Claimant, as constituting a promise or an assurance that she would inherit the Farm, was a reference by Mr and Mrs Gill to White House Farm as - "your side of the Farm" which statement was consistent with the other assurances made to the Claimant by Mr and Mrs Gill and the conduct which they exhibited towards her.
- When the Claimant was on maternity leave in 1997/1998 she had a discussion with Mrs Gill about whether she should return to full time or part time employment or give up work altogether. Mrs Gill could not see why the Claimant was worried about money given that the Claimant would have the Farm. This particular conversation had not been mentioned at any time prior to the Claimant's final witness statement dated the 8th of July 2008 and the Claimant was cross examined in relation thereto. Mrs Talbot-Rice put it to the Claimant that this was just another example of the Claimant attributing her expectation to inherit the Farm to something Mrs Gill had said in the past when it was not attributable thereto but this suggestion by Mrs Talbot-Rice was not accepted by the Claimant.
- After Mr Gill's death the Claimant was sorting through papers when she came across some drainage plans for the Farm. She told Mrs Gill of her discovery and Mrs Gill replied - "don't throw those away. You will need those. You ought to take them and keep them safe". The Claimant's evidence was that the purpose of keeping drainage plans was something that was long term. Drainage schemes are put in and, generally, last for 30 years. So for a long time drainage plans get packed away somewhere and forgotten about. However, Mrs Gill wanted the Claimant to have the plans. This was not because the Claimant was the main point of contact with Mr William Wardman but because Mrs Gill intended the Claimant to have the Farm. Mrs Gill had assured the Claimant she would have the Farm and the Claimant understood Mrs Gill to mean she would have the Farm. By giving the Claimant the drainage plans for the Farm Mrs Gill meant the Claimant to have them for when the Farm was hers. This, according to the Claimant's evidence, was a reassurance by Mrs Gill that the Claimant would inherit the Farm.
- By the time Mr Gill died, Mrs Gill was nearly 75 years of age. From time to time Mrs Gill and the Claimant would discuss what might happen on the Farm in the future. In these conversations Mrs Gill would talk about preserving or doing things for the benefit of the family in the future and was keen to ensure that the Farm was to be maintained for future generations. An example of this was Mrs Gill's concern for 2 acres of woodland on the Farm and her request of the Claimant to - "sort out" those woodlands for the next generation. The suggestion by Mrs Talbot-Rice that Mrs Gill referred only to maintenance of the Farm and said nothing about future generations was rejected by the Claimant who pointed out that woodland is not something one deals with in one generation. Those who plant a woodland do not see it grown up. It is the next generation which does. Mrs Gill mentioned, on numerous occasions in conversations with the Claimant, that she wanted these woodland areas attended to and that they should be attended to for future generations.
- Mrs Gill was keen for her grandson Christopher to take an interest in farming as detailed in paragraph 87 of the Claimant's witness statement dated the 8th of May 2008. On one occasion when Mrs Gill, and the Claimant, were talking about Christopher's future, Mrs Gill remarked - "I wonder what Christopher will do with the Farm". Mrs Talbot-Rice suggested that it was likely Mrs Gill had simply asked or wondered whether Christopher would go into farming. The Claimant's response was an emphatic non-acceptance of this suggestion and the assertion that Mrs Gill encouraged Christopher to take an interest in the Farm from being a very young child. On some occasions Mrs Gill would be musing about agriculture and the state of farming and said:-
"I wonder what Christopher will do with the Farm".
- The Claimant believed that this was an assurance to her that she would be left the Farm because if Christopher was to have it then the Claimant was to have it. Mrs Gill had assured the Claimant that she would get the Farm and the Claimant had every intention of passing on her estate to her son.
- After Mr Gill died and again in the 2000s, Mrs Gill said to the Claimant from time to time:-
"Don't get rid of the old farmhouse and outbuildings because they could be done up and let".
- The Claimant gave evidence that this referred to the old farmhouse and the outbuildings at the Farm which had fallen into disuse and it was said in the context of a substantial development of Hutton Fields Farm by a non-farming family. The Claimant did not, at the time, consciously think of this as an assurance by Mrs Gill to her that the Farm would be left to her. This was because by the time the statement was made the Claimant knew, from previous assurances, that Mrs Gill was going to leave the Farm to her. There was a continuing process of assurances.
- The Claimant told the Court that she loved her parents, Mr and Mrs Gill, and she was sure that even if they had told her she was not going to inherit the Farm she would have worked on the Farm and she would have helped take care of them when they became elderly and frail. However, the Claimant's evidence was that after she left home she certainly would not have spent every bit of spare time she had, whether from studying, working or looking after her family, helping Mr and Mrs Gill on the Farm if she had not thought she was going to inherit the family farm one day. She said that she would have liked to have had more time to devote to her career and to also have enjoyed a social life and holidays away from the Farm with her family and friends. The Claimant expanded upon her evidence by telling the Court that had she known she was not to inherit the Farm she would not have lived where she now does, she would not have chosen the employment which she did. She would have done a lot of things differently. She would have paid more attention to her own life, her career, her future, her own family and her marriage. She was asked, by Mrs Talbot-Rice what other careers she had considered. Her evidence was that of research and joining a pharmaceutical company such as Glaxo but the latter would have required a 100 % commitment on her part. She told the Court that her consideration of other careers was but a passing consideration because the Claimant knew that she would not have the flexibility to pay attention to the family if she seriously considered what she described as a "proper job". The Claimant confirmed that she did not make any applications for positions with firms like Glaxo or with any pharmaceutical firms at all. The Claimant looked in newspapers for jobs. She knew the jobs she was qualified for and she knew the jobs she could apply for had she wanted to do so. When cross examined in relation to her career progression as a Lecturer at Leeds University the Claimant accepted that by early 1989 Professor Mardia, the head of the Statistics Department did not think that she was doing enough research and she agreed with his view. The Claimant told the Court she did not do enough research. She was, she said, "always messing about, going off to the Farm in her spare time", Mrs Talbot-Rice put to the Claimant that she had lost interest in research but the Claimant asserted such was not the case. The Claimant was referred to the University of Leeds Staff Review and Development Report 1988/1989 in respect of herself.
- At Section 1 (b), the Claimant wrote in that report:-
"I do not feel optimistic about my career prospects in the University".
- Professor Mardia, in his appraisal of the Claimant stated:-
"I have been disappointed at her apparent lack of enthusiasm in some of the activities; somehow her heart does not seem to be in them. She has also been somewhat withdrawn in participating in research. In fact, she was warned in March 1989 that recommendation of her next increment would depend on her enthusiastic participation in teaching and administrative duties —.
She is also thinking of some research work but her long term direction is not clear. Her interest in consultancy has been almost nil".
- In answer to Mrs Talbot-Rice's questions, the Claimant gave evidence that she did not lack enthusiasm and it was not a case of her heart not being in the activities such as research. It was a case of lack of time and the lack of time was due to the time which she spent working on the Farm.
- There was a further review for the period July 1991 to September 1993 in which it is recorded by the reviewer that it was a difficult meeting as the Claimant saw no useful purpose being served by the review process.
- By letter, dated the 15 of March 1994, the Claimant asked to be considered under the Mobility Incentive Scheme with a wish to terminate her employment on the 30th of September 1994. The Claimant stated to the Court that she made this application just to see what the scheme was worth. An estimated benefit, dated the 9th of April 1994, was provided to the Claimant which showed the maximum benefit to her from the scheme as £53,351.00.
- The Claimant's husband, Dr Baczkowski also applied under this scheme. However, neither the Claimant nor her husband proceeded with their application. According to the Claimant this was because the money was not enough to give up her career. However, it is to be noted the applications were made by the Claimant and her husband and, at least in the case of the Claimant, it was her second application under the scheme. The first application was dated the 11th of June 1987 and was made within a week of the availability of the Mobility Incentive Scheme being published by circular. The amount of benefit was then calculated at £20,000.00 but the Claimant's application was rejected by the University of Leeds. It was put to the Claimant that the documentation from the University of Leeds suggested that she was unenthusiastic about her job and that at the first possible opportunity of leaving with a cash payment she applied to do so. The Claimant's evidence was that her first application, dated the 11th of June 1987, was made because of Mr Gill's medical condition even though the date for termination of her employment given by the Claimant, in that application, was 2 and a half years later.
- The Claimant was not on hand at the Farm to do work over the period 1968 to 1987 as she and her husband did not move to White House Farm until 1987 when they took up occupation of a caravan situated thereat. From 1987, though the Claimant and her husband were working on White House Farm, whenever jobs were required to be done on the Farm those jobs took precedence. The Claimant accepted that from 1988 until 1997 Adamson Contractors did the contracting work on the Farm. In 1997 William Wardman took over from Adamson Contractors on a different contractual basis. The Claimant did not accept that she had overstated the amount of time she expended working on the Farm.
- The Claimant's evidence in chief was that had she known she was not going to inherit the Farm she would have returned to full time employment in 1998 after completing her maternity leave. Living at White House Farm and spending any spare time helping and caring for Mr and Mrs Gill at the Farm made that impossible. The requirements of international level research and periodic national research assessment exercises meant that after the Claimant's maternity leave it was not possible for her to return to her old job other than on a full time basis. She attempted to persuade her employer to leave the option of returning to full time work open for her but the University refused. The Claimant could not return to work full time and at the same time help her parents on the Farm. Because of the career choices the Claimant then made she cannot now return to work full time. The time that she and her husband spent helping Mr and Mrs Gill has had a detrimental effect on both their careers. There was no doubt in the Claimant's mind that being unable to spend more time writing and conducting research has held both of them back.
- It was put to the Claimant that she took into account the financial consequences of going back to work part time as opposed to full time, that she requested estimated pension entitlements with retirement ages of 55 years and 60 years of age based upon full time and part time employment from Leeds University superannuation scheme. Those estimates were provided to the Claimant and disclosed the following pension benefits:-
Retirement at 55 years
1. Full time - lump sum £28,923.00, annual pension £9,641.00;
2. Part time - lump sum £25,068,00, annual pension £8,356.00; Retirement at 60 years
1. Full time - lump sum £34,431,00, annual pension £11,477.00;
2. Part time - lump sum £29,380,00, annual pension £9,273.00.
- The Claimant did not agree with the suggestion that the difference in pension benefits resultant upon 50 % part time working, as opposed to full time working, was not great.
- The Claimant stated that she intended to return to her employment at the end of her maternity leave for a period of 3 months to ensure there was no claw back of non statutory maternity benefits paid to her by the University.
- By letter, dated the 30 of April 1998. the Claimant requested consideration by the University of Leeds of her working part time (50 %) for a temporary period of 4 years. That request was acceded to by the University by letter of the 8 of May 1998 but as a permanent change and not for a temporary period of 4 years.
- It was put to the Claimant that when considering whether to return to her employment part time, full time, or not at all, the expectation of inheriting the Farm played no part because the decision to return part time was based upon the fact that her son Christopher would have commenced schooling by the expiry of the 4 year period but over the 4 year period he would need to be looked after due to him not attending school. This suggestion was rejected by the Claimant who stated to the Court that the decision was driven by the need to do a good job. She said that if one is looking after a Farm, looking after an aged parent such has to be done properly and if you have a child he needed to be looked after properly too. The Claimant emphasised that she could manage Mrs Gill, the Farm and the job but Christopher was an extra burden she could not manage.
Dr Andrew Baczkowski
- Dr Baczkowski was called as a witness for the Claimant. He made certain corrections to his witness statement which was then admitted as his evidence in chief.
- Dr Baczkowski was cross examined in some detail by Mrs Talbot-Rice. He told the Court that he and the Claimant started courting in October 1979 and one of the things the Claimant told him was that she had continued as a student as long as possible so she could be available to work on the family farm. Dr Baczkowski accepted that if the Claimant had worked in the academic field such would have allowed her the same opportunities to work on the family farm as would be available to her as a student. Dr Baczkowski also informed the Court that the Claimant told him that if she did not get another post at the end of the 3 years she would go and work on the family farm. He believed that at the time this was said by the Claimant she held a 3 year research fellowship but in fact it was a one year research assistanceship post which had been extended.
- Dr Baczkowski's recollection is that from 1979 to 1986 in the Christmas and Easter holidays, for the bulk of the summer holidays and every second weekend, the Claimant would be at the Farm.
- The Claimant and Dr Baczkowski's wedding was a small affair. The reason for this was not financial but because of Mrs GilPs shyness. Dr Baczkowski knew that Mrs Gill would probably not attend the wedding if some of his relations attended. Only Dr Baczkowski's mother attended from his family. This was done deliberately to ensure that Mrs Gill could be there for the Claimant on her wedding day. They were married on the 14th of July 1986 and on the 7 of November 1986 they completed the purchase of White House Farm as joint tenants.
- Prior to his marriage to the Claimant, Dr Baczkowski visited Mr Gill who asked him what he thought about White House Farm which was adjacent to the Farm. Dr Baczkowski who had, with the Claimant, inspected White House Farm told Mr Gill that it was the worst place he had ever seen for sale. Dr Baczkowski described the property as uninhabitable. At that time Mr and Mrs Gill were building a new house at the Farm with the intention of moving thereto from Brookfields. Dr Baczkowski was told by the Claimant that it was her parents' wish that they should purchase White House Farm which was adjacent to the Farm as too was Hutton Fields which Mr Gill intended to purchase so that - "the family would control the whole strip" according to Mr Gill. Dr Baczkowski had saved just over £20,000.00 and the guide price for White House Farm was £15,000.00. Dr Baczkowski was content for his money to be expended in its purchase because it adjoined the Farm which was going to be the Claimant's one day.
- When asked by Mrs Talbot-Rice how it was he knew this, Dr Baczkowski told the Court that he supposed he had the natural expectation that the Claimant would inherit the Farm because the Claimant was Mr and Mrs Gill's only child and did so much for them. The Farm was the Claimant's heart, it was her life. Mr Gill did not volunteer anything to Dr Baczkowski which led to this expectation on his behalf but, according to Dr Baczkowski, when the Claimant and he got married this was his "mind set".
- Mr Gill wanted the Claimant and Dr Baczkowski to have White House Farm and he determined that they should have that property. He did all the negotiating for the purchasing of White House Farm but when the price for that property reached £33,000.00 it was out of Dr Baczkowski's price bracket. Dr Baczkowski told the Court that Mr Gill was determined he and the Claimant should have White House Farm and it was Mr Gill who provided the balance of the monies required to purchase it; namely £13,000.00 plus £340.00 for the land agents fees. Dr Baczkowski's expectation was that the Claimant would inherit the Farm one day. White House Farm had come up for sale and was adjacent thereto. It made absolute sense to purchase White House Farm. Had Dr Baczkowski known that the Claimant was not to inherit the Farm he would not have purchased White House Farm. White House Farm was miles out of the way. It was 53 miles by car from Leeds University where Dr Baczkowski worked. It was a ridiculous place to go and live. If Dr Baczkowski had known the Claimant was not going to inherit the Farm they would not have been at White House Farm and the Claimant would not have continued to do jobs on the Farm. It would have been ridiculous for the Claimant, Dr Baczkowski, and any children they might have to go and work on the Farm when the Farm was going to be given to somebody else. Dr Baczkowski told the Court that the Claimant had never said to him anything like - "I am going to inherit the Farm one day" and Mr Gill never said to Dr Baczkowski "it is perfect because Christine will inherit the Farm" or anything similar.
- After the purchase of White House Farm which was in a dilapidated condition, the Claimant and Dr Baczkowski essentially re-built it and the funding for that work was in part the net proceeds of sale of the Claimant's flat in Leeds together with a loan of about £9,500.00 from Dr Baczkowski's mother which loan was repaid within a year of the purchase. Whilst the building works were carried out Dr Baczkowski and the Claimant lived in a caravan on site. They moved into the new house in 1993. All the effort and money invested in White House Farm, and all the inconvenience which the Claimant and Dr Baczkowski put up with, was done in the expectation that the Claimant would inherit the Farm. The reference in Dr Baczkowski's witness statement to - "Mr and Mrs Gill always referred to White House as "your side of the Farm"" was a reference to White House Farm and the fields immediately in front of it even though those fields form part of the Farm. White House Farm had one field only. Dr Baczkowski explained that when he says, in paragraph 20 of his witness statement, that the Farm and White House Farm were worked as a single unit all that was meant to mean was that when hay was made at the Farm the machinery used to make the hay was then used on the 5.5 acre field at White House Farm.
- Mr Gill was not an easygoing or talkative man according to Dr Baczkowski. He was deeply knowledgeable of and committed to farming and he was happy to share his knowledge and commitment with Dr Baczkowski. He taught Dr Baczkowski various matters in and about farming.
- Mr Gill's question of the Claimant in relation to Dr Baczkowski of - "will he make a farmer?" induced in Dr Baczkowski a feeling of responsibility which resulted in him spending a lot of time on the Farm helping out.
- In his witness statement, Dr Baczkowski describes Mr Gill as having a temper which he would sometimes lose with Mrs Gill if she made a remark about something which he saw as being critical. He would become apoplectic with rage. Mr Gill always got his way and as far as Dr Baczkowski could see, Mr Gill did not involve Mrs Gill in decisions to do with the day-to-day running of the Farm. Mr Gill would always do what he wanted to do.
- In answer to a question posed by the Court, Dr Baczkowski gave evidence that the only job he had witnessed Mrs Gill doing on the Farm was that of burning stubble a little bit, Mr Gill did not defer to Mrs Gill but she deferred to him. Automatically Mrs Gill would give in to Mr Gill and keep quiet. If she did not a row would develop which was not a two sided process but one of merely Mr Gill shouting at Mrs Gill.
- Mrs Gill was shy and reticent according to Dr Baczkowski. She did not court social contact. If people approached her she was able to meet and speak with them sometimes but she hated meeting or talking to people outside the family and would go to extraordinary lengths to avoid this. Even years after Dr Baczkowski married the Claimant, he would sometimes see Mrs Gill backing away as he came round the corner. Dr Baczkowski found it quite difficult sometimes. If someone drove down the track to the house, Mrs Gill would back away from the window. If people were working outside the house she would have the blinds down. Dr Baczkowski described Mrs Gill as reclusive. She did not have any friends and before Mr Gill died Mrs Gill did not really speak to anyone except Mr Gill and the Claimant's son, Christopher. Dr Baczkowski said that after Mr Gill died, Mrs Gill's brother used to phone about once a week and he would talk for ages but Mrs Gill then complained that she did not want to talk to him. If forced, Mrs Gill would talk to people but she would answer the door to the house only because she had to.
- Mrs Gill was very fearful and hated to be left alone in the house. She found making a decision about anything impossible. She always wanted everything to be clean to the point of obsession and she would always be doing jobs. She was very slow in doing the jobs so they would take a lot of time. It could take her 2 hours or more to get up in the morning and come downstairs. She would go to bed late because she would be doing all her jobs.
- After Mr Gill died, the Claimant took over running the Farm. The Claimant liaised with Mr Wardman, the Accountant, the NFU office and the other people doing jobs and simply kept her mother informed. The Claimant tried to encourage Mrs Gill to play a part in managing the Farm. She attempted to ask Mrs Gill's opinion and attempted to talk to her about decisions which had to be made. Mrs Gill was unable to make a decision, always fearful of making an incorrect one. Dr Baczkowski told the Court he was not overstating the position when he said that Mrs Gill was unable to make a decision and he provided an example of such by reference to samples of kitchen tiles. Dr Baczkowski took Mrs Gill to the hospital to see Mr Gill on the day that he died. He told the Court that he left her with Mr Gill on a ward with a number of people about for 1 ½ to 2 hours. Dr Baczkowski accepted the situation was quite a frightening one for Mrs Gill but stated that she was with her husband with the curtains partially around them. In June 1987 Mr and Mrs Gill moved from Brookfield Farm to the Farm. Dr Baczkowski helped them move and that help included exhuming Mrs Gill's dead dog. Dr Baczkowski was told that Mrs Gill would not move unless the dog was moved.
- Mrs Gill spoke to Dr Baczkowski about maintaining the woodlands at the Farm. She told him she wanted the woodlands keeping for the future. She was keen for Christopher to take an interest in farming and she purchased toys of an agricultural nature for him such as tractors and combine harvesters. Dr Baczkowski considered that Mrs Gill was encouraging Christopher to take an interest in the Farm.
- Dr Baczkowski discussed with Mrs Gill what could be done one day to generate income for the Farm. They were not talking about what other people could do with the Farm but what he and the Claimant could do.
- In 2006, Dr Baczkowski went to the offices of Hunt & Wrigley for the purpose of seeking advice about Mrs Gill executing an Enduring Power of Attorney. He told the receptionist at Hunt & Wrigley that he thought Mrs Gill had made a will at that time. According to Dr Baczkowski he had not discussed with Mrs Gill the creation of an Enduring Power of Attorney and he did not tell Mrs Gill that in order to make an Enduring Power of Attorney she would need to attend at the solicitors offices or someone from that office would need to attend upon her at her home. Dr Baczkowski told the Court that he did not suggest that Mrs Gill should see someone from Hunt & Wrigley.
- In July 2006 Mrs Gill went into hospital whilst the Claimant and Dr Baczkowski went to Alston for a holiday with Christopher. Mrs Gill was mobile and a patient on the Ainderby ward. Dr Baczkowski accepted that whilst in hospital, Mrs Gill would have communicated with the medical and nursing staff.
- In August 2006 the Claimant contacted Hunt & Wrigley. The reason advanced by Dr Baczkowski for this contact which was on the 21st August 2006, was that the Claimant wished to make sure that when Mrs Gill died the Claimant would have authority to continue the farming business.
- Mrs Talbot-Rice put it to Dr Baczkowski that if what he and the Claimant said about inheriting the Farm was correct, there would be no reason for the Claimant to have any doubt about having authority to carry on with the Farm. Dr Baczkowski answered this point by saying the reason for doubt was Mrs Gill having said to the Claimant that she thought she and Mr Gill had just left everything to each other and that implied there might be trouble sorting it out. Dr Baczkowski gave evidence that neither the Claimant nor he knew that Hunt & Wrigley were appointed Executors by the terms of Mrs Gill's will. On being referred to the attendance note of Mr Hall, dated the 22nd of August 2006 which, inter alia, reads :-
"She knows that the partners in the firm are Executors".
Dr Baczkowski stated that there was no mention by the Claimant in the conversation which she had with Mr Hall, which Dr Baczkowski heard, of Executors and that the attendance note was incorrect in this respect.
Mr Geoffrey Hansell
- Mr Geoffrey Hansell was called as a witness for the Claimant and his witness statement, dated the 8th of May 2008, was admitted as his evidence in chief.
- He was cross examined by Mrs Talbot-Rice. He told the Court that his father owned the farm where he had grown up and upon his death he left it not to his son, Mr Geoffrey Hansell, but to his brother.
- From 1975 to 1985 neither Mr Gill nor Mrs Gill lived at the Farm. They lived at Brookfields Farm. The Claimant helped out with the farming on occasions. She would help at weekends but not every weekend and not every other weekend. Further over the period June to October of each year she did not work every day.
- Mrs Gill was, according to Mr Hansell, very shy. She did not say much but she spoke to Mr Hansell. On some occasions Mrs Gill would be very very reclusive and on other occasions she would be more talkative. She would talk about harvest and farm machinery. On one occasion she came out from the farmhouse of Brookfields Farm and confronted Mr Hansell asking why he had stopped baling.
- Mr Gill had ideas of his own that he thought were "gospel" and if other people did not agree with him, they were wrong and he was right. Mr Gill thought that everybody should work for a living.
- In the late 1970s/early 1980s as a result of a comment made by Mr Gill in respect of the Claimant's then boyfriend, there was disagreement between them and the Claimant returned to Leeds for a few months. Mrs Gill apparently expressed to Mr Gill her concern about what they would do with the Farm if the Claimant did not return and he told Mrs Gill - "leave it to Geoff. Mr Hansell believed Mr Gill said that seriously at the time and Mr Hansell took it seriously but did not expect it to happen because he expected the Claimant to return and make her peace with her parents. The statements of Mrs Gill and Mr Gill were references to what they would do with the Farm when they passed away, according to Mr Hansell. He told the Court they never said to him that they were leaving the Farm to the Claimant. Mr Hansell personally expected that they would leave the Farm to the Claimant.
- Mr Hansen's evidence was that Mr Gill did not involve himself in the hunt which did not pass over Mr Gill's Farm while Mr Hansell was working for him but it did whilst he was still alive on the odd occasion. Mr Hansell volunteered that the hunt was surprised that they were allowed to hunt over Mr Gill's land.
- According to Mr Hansell, Mr Gill did not involve himself with the RSPCA or any charities so far as he was aware. Mr Hansell thought it was in about 1995/1996 that Mr Gill changed his mind and allowed the hunt over his land.
Mr Brian Noble
- Mr Noble's witness statement, dated the 28th of April 2008 was admitted as his evidence in chief.
- When cross examined Mr Noble described Mr Gill as a fair man, honest and a man of integrity.
- When working for Mr Gill, Mr Noble spoke to Mrs Gill by telephone from the Farm to Brookfields when he rang to find out what Mr Gill wished him to do by way of work. Mrs Gill would answer the telephone occasionally and when she did she would get Mr Gill then to come to the phone. According to Mr Noble he could never have a conversation of any length with Mrs Gill. She did not want to get involved as he put it. If Mrs Gill saw Mr Noble approaching she would dart away quickly. She would not wish to speak with him. Mrs Gill did not wish to mix with people according to Mr Noble and she would hide from people.
- Mr Noble's evidence to the Court was that from what Mr Gill had told him he believed Mrs Gill was suffering from a disorder. She could not be left on her own and she did not like to meet people.
- Mr Noble told the Court that the Claimant and Dr Baczkowski helped with the harvest in 1989 and Mr Gill told Mr Noble to work Dr Baczkowski "hard". It was Mr Noble's evidence that Mr Gill wanted the Claimant to attend the Farm more because he wanted more time to spend on farming and not looking after Mrs Gill, Mr Gill never expressly told Mr Noble that the Claimant was going to get the Farm when he died however he implied that she would. Mr Gill did not make definite statements. He would talk in a round about way and Mr Noble formed the definite impression that Mr Gill was going to leave the Farm to the Claimant. This impression was formed over a period of 3 years from conversations with Mr Gill but Mr Noble could not identify any specific statement or statements made by Mr Gill which caused Mr Noble to form this impression.
Mr Brian Swales
- Mr Swales' witness statement, and a letter he wrote dated the 3rd of January 2007, were admitted as his evidence in chief.
- Though Mr Swales lived on the opposite side of the road from the Farm, at Thorn Farm, he had very little contact with either Mr or Mrs Gill.
- Mr Swales first met Mr and Mrs Gill in 1975. He described Mr Gill as a little strange. To a certain degree somewhat eccentric. He did not mix socially at all and if Mr Gill met one face to face he would talk to you but otherwise he avoided contact and merely drove past on the combine or whatever.
- Mrs Gill was described by Mr Swales as a very strange lady. He could not recall her ever speaking to him. Once when Mr Swales went to the house, Mrs Gill opened the door, she did not say anything and stepped back. Mr Gill then came to the door. This occurred after 1987 and apart from this occasion Mr Swales had no contact with Mrs Gill. He considered Mrs Gill strange because of this one meeting and the fact that on other occasions she did not acknowledge him but avoided contact.
- Mr Swales explained that his statement in paragraph 5 of his witness statement which reads
"I cannot imagine her (Mrs Gill) going to meet a stranger such as the solicitor to sign a will — I am sure she would not have wanted to go up to see a solicitor in town".
is based purely on his one meeting with Mrs Gill and her lack of acknowledgement of Mr Swales.
Mr David Pennock
- Mr David Pennock was called as a witness for the Claimant. His witness statement and a letter which he wrote, dated the 19th of February 2007, were admitted as his evidence in chief.
- In answer to Mrs Talbot-Rice's questions, Mr Pennock told the Court that it was his job to look after the wheat, barley and rape seed crops which were grown on the Farm and because of such there was not a lot more work to be done on the Farm apart from that done by a contractor except when it came to harvest time which lasted 5 to 6 weeks. Mr Pennock saw the Claimant helping out at harvest time but at other times of the year he did not see her as there would not be an awful lot to do. The work the Claimant did, which Mr Pennock witnessed, was that of driving the tractor, bringing the grain back from the combine at harvest time and helping with the drying of the grain. Without contractors help, Mr Gill could not have done on the Farm what needed to be done. Mr Gill never suggested to Mr Pennock that the Claimant could do the work on the Farm that needed to be done and such was not suggested to Mr Gill by Mr Pennock.
- Though Mr Pennock regularly visited the Farm between May 1987 and June 1997, he was not invited into the house. On Mr Pennock's visits, Mr Gill would come out of the house to see him and either sit in the car or go into one of the Farm buildings to discuss business. If Mr Pennock knocked on the house door when first arriving at the Farm, and if Mrs Gill answered the knock, she would acknowledge Mr Pennock but then get Mr Gill or Mr Gill would then appear. Whenever Mr Pennock saw Mrs Gill she was always in the house. She was not round the outbuildings or in the fields and he had not seen her in the garden to the house.
- Mr Pennock described Mr Gill as a man of his own opinions who knew what he was doing and who knew what he wanted doing. Mr Pennock respected him and considered Mr Gill to be a "good guy". He did not really discuss the Claimant with Mr Pennock and he never discussed the Third Defendant with him. Mr Gill did discuss his dog which Mr Pennock described as his "big friend".
- Mr Pennock's description of Mrs Gill was that she was quiet and reserved.
Professor Kanter Mardia
- Professor Mardia's witness statement, dated the 7th of May 2008, and a letter written by him dated the 6th of June 2007 were admitted as his evidence in chief.
- Professor Mardia also provided oral evidence in chief. He told the Court that when the Claimant applied for the post of lecturer in the Department of Statistics in 1980 she had great potential as a University Lecturer, Researcher, Teacher, Administrator. In 1987 Professor Mardia considered that the Claimant was juggling 3 careers; they being Lecturer, Farmer and Carer for elderly parents. He told the Court that in his judgement the Claimant was capable of research and had research abilities.
- Professor Mardia explained his comment set out in the staff review and development report for 1988 to 1989 as being disappointed at the Claimant's apparent lack of enthusiasm etc. in the context of the Claimant doing 3 careers at once with the result that some of her activities had to suffer. The Professor remarked that the Claimant had to do teaching which was compulsory. She also participated in administration at which she was good, and consequently, it was the research that suffered.
- When cross examined, Professor Mardia was asked questions about the Claimant's academic career including her appointment as a lecturer in 1980 with a 3 year probationary period followed by an efficiency bar which was operated for 5 years. On the 28 of March 1985, Professor Mardia wrote to the Claimant requesting details of her then research activities. He gave evidence before the Court that he knew what these activities were in general terms but he required the Claimant to set them out in writing with specifics. Professor Mardia explained the reason for the Claimant having specified, in her application under the Mobility Incentive Scheme, the date of departure of the 30th of September 1989, was because Professor Mardia had asked her, as a favour to him, to delay her departure as long as possible. The reason for the Claimant's application was that she knew her prospects of promotion were poor because her research work was negligible. Professor Mardia stated that the Claimant lacked enthusiasm due to the distractions of running, and working on, a farm and caring for elderly parents.
- The Claimant made a second application under the Mobility Incentive Scheme in March 1994 with effect from the end of September 1994. Professor Mardia had no recollection of any involvement with this second application. He was taken through the Claimant's review for 1993 which was conducted by a lecturer by the name of Patrick Constable and Mrs Talbot-Rice put it to him the various entries in the review made by the Claimant and Patrick Constable evidenced a total lack of enthusiasm by the Claimant for her job and for her prospects. Professor Mardia rejected this suggestion. He was then taken to a review of the Claimant which took place in February 2000. He explained that the system which was then in place, and had been prior thereto, meant that he personally did not see a yearly review unless the reviewer specifically brought it to Professor Mardia's attention. He did not recollect seeing the 2000 review of the Claimant. The Professor explained that the Claimant was a part time lecturer when the review was carried out and because of such she did not have any promotional prospects. In order to gain promotion one had to excel at teaching, at research and at administration. Part time lecturers were competing for promotion against full time lecturers who had the time to excel in all 3 areas. Further, there was no funding available to enable the Claimant to return to a full time post.
- Professor Mardia was questioned about the Claimant's letter to him dated the 30th of April 1998 containing her request to work part time, 50 %, for a temporary period of 4 years. The Professor's reply to that letter constituted an acceptance of the Claimant's request but on the basis that her part time work would be permanent. He explained that whether or not the Claimant would be taken back by the University, on a full time basis, would depend upon the circumstances at the time such request was made of it including the issue of funding. He also explained that the question of whether, as Head of the Department, he would recommend the Claimant for a return to full time work would depend upon all the prevailing circumstances at the time.
The Reverend Linda Shipp
- Reverend Shipp's witness statement was admitted as her evidence in chief.
- When cross examined, the Reverend Shipp gave evidence that she had not known Mr Gill who did not attend church as far as she was aware. Neither did Mrs Gill. The Reverend had not known the Claimant or Mr or Mrs Gill or Dr Baczkowski prior to her visit to White House Farm on the 23rd of August 2006. On this occasion the Claimant told Reverend Shipp that Mrs Gill had strange habits or words to that effect but she did not elucidate. On the occasion of Reverend Shipp's second visit, the Claimant told her that Mrs Gill had been a difficult person to be with sometimes but she had to spend a lot of time with her. The Claimant told the Reverend about Mrs Gill going out with Mr Gill and remaining in the motor car, that Mrs Gill was unable to deal with social contact, had few or no friends and avoided people where possible.
- The Reverend was in no doubt that the Claimant had no knowledge of the contents of Mrs Gill's will because of her conclusion that the Claimant was struggling to come to terms with, and trying to work out why, it happened and to understand how it had occurred.
Mr Peter Edmonds
- Mr Edmonds' witness statement dated the 1st of May 2008 and his letter dated the 8th of December 2006 were admitted as his evidence in chief.
- Mr Edmonds had been the National Farmers Union Group Secretary at Northallerton commencing 1975 and arranged insurance for Mr Gill from 1976. He visited Mr Gill at least once a year when Mr Gill resided at Brookfields and subsequently the Farm. Each time he visited the procedure was exactly the same, Mr Edmonds would drive his car to the farmhouse, and knock on the door. Mr Gill would emerge and then he and Mr Edmonds would sit in the latter's car for 2 to 3 hours discussing matters. Mr Edmonds was never invited into the farmhouse.
- Mr Edmonds described Mr Gill as a son of the soil, a dyed in the wool farmer who loved farming and everything to do with the Farm. He was a self made man. Even when he became frail his discussions with Mr Edmonds each year lasted 2 to 3 hours. He did not like to talk personally about his wife, his family or their circumstances. Mr Gill's character and conduct were not in any way extraordinary. Mr Edmonds wished to retract his description of Mr Gill as eccentric and replace it with the description of him being a real character. He once mentioned to Mr Edmonds that Mrs Gill was not well but he provided no explanation or details.
- Mr Gill had an Anatolian Karabash dog by the name of Samson who was a very valuable part of the Farm in that he had a role to play in its security. Mr Edmonds thought Mr Gill was fond of Samson - "like anybody would be fond of their dog", but Samson had a purpose on the Farm and Mr Gill's attitude was that if Samson became a liability he was then a liability and that was that (meaning he would be put down).
- Mr Edmonds met Mrs Gill once shortly after Mr and Mrs Gill moved to the Farm. Mr Edmonds attended the new house to resolve an insurance issue. The door to the house was open, he could see Mrs Gill sat in her chair in the corner of the kitchen and Mr Edmonds simply acknowledged Mrs Gill but did not recall any return acknowledgement from her. Mr Gill then came down from upstairs. No one else was in the property. Mr Edmonds considered that Mrs Gill had a communication problem but such was merely an assumption on his part and he did not know what her condition was.
- Mr Gill never mentioned to Mr Edmonds what would happen after his death. Mr Edmonds never talked to Mrs Gill and what she did by her will was not something he could really comment upon. In fact Mr Edmonds could not recall ever talking to Mrs Gill.
Mr William Wardman
- Mr William Wardman's witness statement and his letter, dated the 20th of February 2007, were admitted as his evidence in chief.
- In the course of cross examination, Mr Wardman was quite adamant that when he was first introduced to Mr Gill, by Mr Pennock, he did not meet Mrs Gill and he was not aware of her existence. He and Mr Pennock drove to the Farm and Mr Gill came to the car and got into it. The purpose of Mr Wardman's attendance was to advise Mr Gill who wanted to try and find some way that he could keep the Farm going and be involved in the farming himself. Mr Gill also wanted the Farm to be left in good order at the conclusion of the 2 year trial period Share Farming Agreement so that he could take it back entirely if necessary.
- Mr Gill was also looking at the Farm being farmed on an ongoing basis. He regarded the Farm as very much his and he wished to retain control of it. Mr Wardman gave evidence in relation to the Claimant's activities on the Farm-After Mr Gill died the Claimant was, according to Mr Wardman - "the eyes on the ground". The Claimant would let Mr Wardman know if there was a problem at the Farm, if the conditions were suitable for spring planting and if the crops were ready for harvesting. After the 1997 harvest Mr Wardman did not see the Claimant working on the Farm doing jobs he had seen her doing earlier that year. However she would still come to the Farm and supervise the work carried out by Mr Wardman.
- In about 1998 Mr Gill had a conversation with Mr Wardman in which he mentioned how nice it was that some young lads (meaning Mr Wardman and a Mr Shaw who was working with him) were actually prepared to work. Mr Wardman's evidence was that Mr Gill thought everyone should be working. He did not have a lot of time for people who wasted their time instead of doing a decent day's work. Mr Gill said he hoped the lad, which Mr Wardman took as a reference to Christopher the Claimant's son, would be prepared to work as hard as he and Mr Shaw were. Mr Wardman said he understood this to be a comment that he hoped he would work hard and not be one of the modern day youngsters who sat on "his backside".
- Mr Gill did what he wanted to do regardless. Mr Wardman described Mr Gill as a fairly stern man. He gave instructions as to what he wanted doing on the Farm. Those instructions were clear and direct ones and there was no real compromise on the part of Mr Gill. Mr Gill would disregard advice given to him in a farming context and Mr Wardman thought that he would not be easily told what to do by people including doctors. Mr Gill had a large dog and he would on occasions tell Mr Wardman how good the dog was at evicting rabbits from that part of the Farm known as - "Nova Scotia" but the dog was rarely talked about as it was simply there. It was a working dog used for vermin control and security. Mr Wardman could not say whether Mr Gill was fond of the dog.
- Mr Gill never said anything to Mr Wardman about what was to happen to the Farm after he and Mrs Gill died. Mr Wardman assumed the Claimant would take control but that assumption was not based on anything Mr Gill or Mrs Gill had said to him.
- Mr Wardman was referred to his letter, dated the 28th of February 2007, and the reference therein to Mr Gill having said at their initial meeting that he wished to keep the Farm going for his grandson. Mr Wardman corrected the reference to "grandson" to "next generation" and confirmed that the Claimant, and not Christopher, was the next generation. In fact, Mr Wardman, at that time, did not know that Mr Gill had a grandson. However Mr Wardman was sure Mr Gill had said that his aim was to keep the Farm going so that it would pass to the next generation. Whether Mr Gill meant by next generation the Claimant or Mrs Gill Mr Wardman did not know.
- Mr Wardman only ever had a meeting with Mrs Gill in the presence of the Claimant.
- He never met her alone on a one to one basis. At the meetings with Mrs Gill, she would always turn her back on Mr Wardman and go and make a cup of tea. She would not, in Mr Wardman's words, "directly interface" with Mr Wardman and would not directly approach him. She would speak to Mr Wardman and, when outside, acknowledge his presence with a slight raise of the hand but would lower her head and scuttle straight back into the house. At the meetings which Mr Wardman had with Mrs Gill, at which the Claimant was present, it was the Claimant who was the spokesperson. Mrs Gill did not speak at these meetings unless she was coaxed into doing so by Mr Wardman and/or the Claimant. The meetings always took place in the kitchen of the Farmhouse and, at the conclusion thereof, Mrs Gill might make some comment about what she had heard or read. This was usually in response to Mr Wardman trying to talk to her in order to be polite. Mrs Gill was very reclusive and Mr Wardman tried to do everything possible to help her. Mr Wardman did not think that Mrs Gill gave the impression that she was not intending to farm the Farm.
- Mrs Talbot-Rice put it to Mr Wardman that Mrs Gill knew her mind on certain matters and gave the example of her not allowing Mr Wardman to sell the Farm equipment. Mr Wardman's evidence was that he did not think it was a case of not letting Mr Wardman sell the equipment, Mrs Gill just could not make up her mind whether she wanted to sell it or she did not want to sell it. However, Mr Wardman volunteered the opinion that she was reluctant to sell the Farm equipment and she wanted to keep the old tractor because she associated it with Mr Gill and drove it herself when she was younger.
- Mrs Gill wanted the woodland managed and Mr Wardman, in 2000, secured the services of the Forestry Commission which advised that the only real option was to fell all the woodland and replant. Mrs Gill objected to such course of action being adopted as it would result in the farmhouse being viewable from the neighbouring property.
- Mr Wardman considered that when he spoke to Mrs Gill she had no difficulty in taking in what he was telling her and no difficulty in responding appropriately to what he had said.
- She never said anything to Mr Wardman about what was going to happen to the Farm after her death. Mrs Gill felt that the woodland could only be preserved for future generations by managing it.
- Mr Wardman explained the Countryside Stewardship Scheme to Mrs Gill. She understood what he said to her and what it would achieve. From these conversations with Mrs Gill, about the scheme, including that which would be required to be done, as set out in paragraph 29 of Mr Wardman's witness statement, he assumed that Mrs Gill intended to keep the Farm going for future generations of her family but it was just that, an assumption by him.
- Mr Wardman was referred to the Countryside Stewartship Scheme 2000, Agreement, signed by Mrs Gill and dated the 30th of April 2003. He confirmed that he had signed the original application as agent for Mrs Gill. It is to be noted that the agreement, excluding the schedules, runs to 10 pages and the 6 schedules thereto run to 31 pages.
- As agent for Mrs Gill, Mr Wardman was sent copies of the letters from Defra to Mrs Gill in relation to the scheme. He was not aware of any telephone conversation or conversations between Defra and Mrs Gill.
- At paragraph 39 of his witness statement, Mr Wardman states:-
"I have no doubt from my conversations with Mrs Gill, her relationship with Christine and her grandson, that she did not know what was in her will".
He was asked why he said that and Mr Wardman's evidence was - "I just feel as though the way that she went on and that, sort of —, the way that Christine was so heavily involved in the Farm and Mrs Gill allowed Christine to be so heavily involved in the Farm, that I couldn't see any other option".
- When pressed by Mrs Talbot-Rice Mr Wardman confirmed:-
1. Mrs Gill said nothing to him about her will;
2. He assumed that by her will she would leave her estate to the Claimant;
3. Mrs Gill never said anything to disabuse Mr Wardman of that assumption.
- Mr Wardman confirmed that this was all he meant by the sentence in paragraph 39 of his witness statement.
Mr Trevor Mason
- Mr Mason's witness statement and his letter dated the 6th December 2006 were admitted as his evidence in chief.
- Mr Mason gave evidence that while Mr and Mrs Gill were living at Brookfields they would travel to the Farm. Mrs Gill would either sit in the car or busy herself around the buildings once they had arrived. She did more sitting in the car than anything else. In his witness statement, Mr Mason described Mr Gill as a nice gentleman but very strange and eccentric. He explained that what he meant by that was that one would not recognise him as a farmer. Mr Gill looked more like a tramp sometimes. He was never dressed as you would expect him to be. Mr Mason described somebody eccentric who dressed in an unkempt sort of way and that's the only thing Mr Mason really meant by "being eccentric". Mr Gill was not a talkative man and he did not go out of his way to make conversation, he kept himself to himself.
- More often than not when Mr Gill called to see Mr Mason he would be accompanied by Mrs Gill. Mr Mason would say hello how are you to Mrs Gill and she would respond with - "I'm fine, thank you" but that was it. She would not continue any conversation. Mr Mason's wife spoke with Mrs Gill but only very shortly. Mrs Mason often said that Mrs Gill was not a great conversationalist. She always gave Mr Mason the impression that she wanted him to go away. She was not really interested and just wanted to be alone. Mr Mason considered that Mrs Gill was oblivious to what was going on. If one tried to make conversation with her it was as though she had not heard what you had said and as though she was answering you just out of convenience. Mrs Gill took in what was said to her to a degree but Mr Mason considered it was an answer that was more a reaction than anything else. It was as though Mrs Gill was thinking - "well I will say this and then he might go away". She did not want to conduct a conversation. However if you asked her a question she did respond to it.
- Shortly after the Claimant and Dr Baczkowski purchased White House Farm, Mr Mason spoke to the Claimant about its purchase and asked if the Claimant was returning to live at that property. The Claimant replied that she was in order to be closer to her parents. Mr Mason saw the Claimant regularly going into the Farm on a morning when he passed by on his way to the A19 trunk road and on occasions he saw her coming out of the Farmhouse on an afternoon when he also passed the Farm.
Mr John Flintoff
- Mr Flintoff s witness statement and his letter, dated the 27 of December 2006, were admitted as his evidence in chief.
- Mr Flintoff did various farming jobs at the Farm between 1991 and 1997 and over that period he saw the Claimant and Dr Baczkowski helping with the harvest and with the hay making. Mr Flintoff did hay making, possibly twice, he also did combining and loading corn wagons more than one year and possibly two years. The Claimant and Dr Baczkowski were not always present when Mr Flintoff was loading the corn wagons. He could not remember what the Claimant and Dr Baczkowski were doing when he saw them at the Farm. Mr Flintoff had very little knowledge of the Claimant's relationship with her parents. He assumed that the relationship was a close one and he assumed that the Claimant would inherit the Farm. His reaction of shock, when he learned of the terms of Mrs Gill's will, was nothing to do with any discussion he had had with either Mr or Mrs Gill or with the Claimant as to what Mr or Mrs Gill had intended. In fact Mr Flintoff never spoke to Mrs Gill at all.
Mr Brian Robson
- Mr Robson's witness statement and his letter, dated the 23rd of May 2007, were admitted as his evidence in chief.
- Mr Robson purchased the majority of the land at Brookfields Farm in 1986 and he knew the Gill family until 1987.
- The request by Mr Gill for Mr Robson to take the Claimant for her driving test was not made directly of him by Mr Gill. Mr Robson was passed a message by either his mother or his father, probably his mother, who answered the telephone. Later on, during the night of this request, Mr Robson's mother would have said that Mr Gill could not take the Claimant because Mrs Gill's nerves were bad. Mr Robson did not know whether his mother had been told this by Mr Gill in the course of his telephone conversation or whether it was simply his mother speculating.
- Mr Robson had never seen Mrs Gill have, what he described in his witness statement, as a fit of nervousness. He could recollect Mrs Gill visiting his mother when he was 5 or 6 but nothing more than that.
- When Mr Robson was in his 20s he would visit Mr Gill socially. Mrs Gill never answered the door to him. She was, on occasions, outside the house but did not want to see or speak to Mr Robson. She would turn away and walk in the opposite direction.
- In paragraph 11 of his witness statement, Mr Robson states that it was well known that Mrs Gill would not go into shops.
- However, when cross examined by Mrs Talbot-Rice in relation to this witness statement, he accepted that the going into shops and doing shopping by Mrs Gill was simply something that he was not aware of. The example he gave in his witness statement of Mrs Gill wanting some new knickers but not wishing to go into the shop to buy them was not something of which Mr Robson had direct knowledge but rather something which his parents had spoken of at home. Mr Robson did not know whether his parents were actual witnesses to this conduct on the part of Mrs Gill.
- Mr Robson confirmed that the date, in paragraph 18 of his witness statement, was incorrect and that the correct date was May 2007 which was the month of his letter of the 23rd which was admitted as part of his evidence in chief.
- The Claimant had not been in contact with Mr Robson since 1987 but then telephoned him in May 2007 for the purpose of asking him to write the letter which he did. According to Mr Robson, when the Claimant was a school pupil she was involved in all aspects of work on the Farm. After she left school she returned to the Farm at weekends and in the holidays.
- Mr Robson never met Mrs Gill and did not know her. Mrs Talbot-Rice put it to Mr Robson that such being the position he could not say whether Mrs Gill was capable of telling a solicitor about what she wanted in her will and Mr Robson agreed despite that which is in his witness statement.
Professor Stanley Wainer
- Mr Wainer's witness statement, his letters of the 26th of February 2008 and the 17 of May 2008 and the exchange of emails between him and Mr Green dated the 2nd and the 3rd July 2008 were admitted in evidence.
- Professor Wainer confirmed that the wording of Mr Green's email was approved by him.
- When cross examined Professor Wainer confirmed he became a Professor at the School of Pure Mathematics at Leeds University in approximately 1995 and Head of the School on the 1 of October 2005. He knew, by reason of his position, of the situation in the Department of Statistics and of the need to keep the staffing level up in that department in order to deliver the teaching and research required. The Department of Statistics was, according to Professor Wainer, highly sensitive to staff shortages.
- It became apparent from Professor Wainer's answers to Mrs Talbot-Rice's questions that he did not have any knowledge of how the Claimant's maternity leave was dealt with nor as to whether someone was employed, temporarily, permanently, or at all, when the Claimant took her leave. Professor Wainer was not involved in the staffing levels in the Department of Statistics. He stated that Professor Mardia's knowledge of staffing in the Department of Statistics would be more exact than his.
- Professor Wainer was not aware the Claimant had done any research and he considered that her post, in the Department of Statistics, was a teaching post.
- He explained that there are 3 discretionary increments within the Claimant's grade and she had, in fact, been awarded the first of those 3. There was, according to Professor Wainer, a further potential increment that could have been available to the Claimant with her grade but such would have required her to take on additional duties within the Department of Statistics such as administrative duties. The award of this second increment was not unlikely given the opportunities available.
- There was a third increment, which was reserved for those who had made a very long and very involved commitment and contribution to the Department. It was possible for this to have been awarded to the Claimant but unlikely.
- In re-examination, Professor Wainer described the Claimant as a very capable and very efficient person administratively.
Mr Phillip Armstrong
- Mr Phillip Armstrong's witness statement and his letter, dated the 15th of January 2007, were admitted as his evidence in chief.
- In cross examination Mr Armstrong told the Court that prior to 1995 he had shot pigeons as a hobby and that in that year he became a professional pigeon shooter but ceased that occupation in 2005 upon retirement.
- He shot pigeons and rabbits etc. at Brookfields Farm and at the Farm starting in 1987.
- In 1991 Mr Gill gave Mr Armstrong permission to organise and conduct a rough pheasant shoot 3 or 4 times a year over the Farm but Mr Gill did not join in these shoots.
- Mr Armstrong also explained that Mr Gill allowed the hunt over his Farm and that Mr Gill was all in favour of the hunt as they sorted out the fox problem which he had.
- Mr Armstrong described Mr Gill as an old fashioned farmer who was behind the times. Mr Armstrong confirmed that this is all he meant by his description in his witness statement of Mr Gill as eccentric. Mr Gill talked about the Claimant and, occasionally, Dr Baczkowski to Mr Armstrong. Mr Gill was proud of the Claimant. He was proud of her having done so well at University but he never mentioned Mrs Gill. In the course of a conversation with Mr Gill, Mr Armstrong had said - "I can't wait till eventually I become a grandfather and have grandchildren". Mr Gill replied - "I would love a grandchild to leave the Farm to. If it did not come about perhaps he would leave it to a dogs home".
- When asked by Mrs Talbot-Rice whether Mr Gill was so specific, Mr Armstrong said - "oh yes, that's correct" and Mr Armstrong confirmed this was very clear in his mind.
- This conversation took place before the birth of Christopher and when that occurred Mr Armstrong said to Mr Gill he had got his wish whereupon Mr Gill, who rarely smiled, had a grin on his face.
- Mr Armstrong thought that Mr Gill was joking when he said that if he did not have a grandchild he might leave the Farm to a dogs home. This was because to Mr Armstrong it seems strange to say that.
- Mr Armstrong confirmed that Mr Gill said grandchild and not "grandson".
- Mr Armstrong thought the Claimant would get the Farm and eventually the Farm would be passed down to Christopher because Christopher would have been too young to inherit from Mr and Mrs Gill, Mr Gill did not say anything to Mr Armstrong about the Claimant in the course of the conversation they had.
- Mr Armstrong could not recollect any other conversations he had with Mr Gill from which Mr Armstrong assumed the Claimant would inherit the Farm.
- The letter, dated the 15th of January 2007 (a copy of which lies at bundle El page 320 and a better copy at page 321A) was written by Mr Armstrong's daughter at the request of the Claimant. The Claimant contacted Mr Armstrong and asked him to write a letter explaining about what went on in and about the Farm.
- In this letter, Mr Armstrong states
"I believe that Mr Gill must have made his will prior to Christopher being born and, due to his ever deteriorating health in the last few years of his life, had not changed his will after his grandson was born".
- Mr Armstrong, in response to questioning from Mrs Talbot-Rice, said that the above statement was surmise on his part based upon the conversation he had had with Mr Gill about a grandchild. His evidence was that this conversation had taken place a few years before Christopher was born but he could not say whether it occurred before or after April 1993.
- Mr Armstrong assumed that Mr Gill had made a will leaving the Farm to the dogs home as he said he would and that he had not got round to changing the will after Christopher's birth.
- At paragraph 12 of his witness statement, Mr Armstrong states that it was clear from the way he (Mr Gill) talked about the Farm he did not want it sold and that he must have assumed the Claimant and Dr Baczkowski would have taken over the running of the Farm on his death. Mr Armstrong confirmed this was pure speculation on his part. It was based on nothing that Mr Gill or Mrs Gill said to him and it was not based on anything the Claimant had said.
- Mr Armstrong addresses Mrs Gill at paragraphs 14 to 21 of his witness statement. In cross examination he expanded upon his evidence. He told the Court that when he knocked on the door of the farmhouse it was usually answered by Mrs Gill who looked out from the kitchen window before doing so. Mr Armstrong would chat to Mrs Gill with Mr Armstrong doing most of the talking. Sometimes Mrs Gill would respond with a yes or a no and other times she would engage in conversation for about 10 minutes. They would talk about shooting and families, daughters and grandsons. Mrs Gill would detail Christopher's achievements and Mr Armstrong considered she would have bad days and she would have her good days.
- In his witness statement Mr Armstrong states that Mrs Gill would often seem to be "wrapped up in her own little world". He explained that by this he meant she sat and watched television a lot. She just sat there watching the television.
- The panic attack that Mr Armstrong once saw Mrs Gill experience was explained by him. Mr Armstrong had visited the Farm, Mrs Gill looked out of the kitchen window and it took her longer than normal to answer his knock on the door. When she opened the door Mrs Gill was greyish faced. Mr Armstrong asked her what was wrong and she said that she had had a shock. She was outside the house when a stranger approached her and asked if he could stalk some deer on the Farm. Mrs Gill panicked and said she had got somebody to see to the stuff on the Farm, told the stranger to go away and he gave her a card which she took and then went into the house. When Mr Armstrong looked at Mrs Gill he could see wetness on her face which he described as dampness. He described her as looking shaken and that she was stammering. She described the stranger as having been from the Stokesley area.
- At paragraph 17 of his witness statement, Mr Armstrong states he got the clear impression from Mrs Gill that Christopher would one day run the Farm. He was asked by Mrs Talbot-Rice as to what gave him that impression and Mr Armstrong said that Mrs Gill bought Christopher toy tractors and other toys associated with farming. She had said to Mr Armstrong that Christopher loved tractors. Mr Armstrong then said that it would put him in good stead for proper tractors to run the Farm and Mrs Gill had replied "yes that's great" or words to that effect.
- The third sentence of paragraph 19 of Mr Armstrong's witness statement was an assumption on his part; namely that Mrs Gill used to go shopping with the Claimant now and again. Further Mr Armstrong's evidence, at paragraph 20 of his witness statement, that Mrs Gill encouraged Christopher's interest in farming, was an assumption he made as a result of Mrs Gill buying Christopher toy tractors as presents on his birthday and at Christmas time. Mr Armstrong confirmed that Mrs Gill had told him that she did not like the Third Defendant but he confirmed that he knew nothing about the exhumation of a dog buried at Brookfields Farm and its re-burial at the Farm. Mr Armstrong explained the circumstances in which Mrs Gill expressed the view that the Third Defendant was a waste of time and he thought that this explanation occurred after 1993 and possibly in the year 2002. Mr Armstrong regularly visited the Farm because of its woodlands and the pigeons which live there. He had, on occasions, witnessed Mrs Gill sat in the BMW motor car which was parked close to where Mr Gill was working in the fields simply watching him working. When Mrs Gill was not sat in the car watching Mr Gill she would be in the farmhouse with the Claimant. Mr Armstrong knew this because of the presence of the Claimant's motor car or bicycle. He confirmed that Mrs Gill never said anything to him about to whom she intended leaving the Farm and neither did Mr Gill or the Claimant say anything about such.
- Mr Armstrong formed the impression that the Claimant expected to inherit the Farm. The Claimant had done everything for her mother and father according to Mr Armstrong and, therefore, assumed she would inherit the Farm.
Mr Derek Kitching
- Mr Kitching's witness statement was admitted as his evidence in chief and he was then cross examined in relation to the contents. He told the Court that he started working for Mr Gill in 1989, that in May of each year he cut the verges and in August/September he cut the hedges and cleared the ditches of the Farm.
- Mrs Gill would see Mr Kitching driving the tractor and he would see her in the kitchen of the house but she did not acknowledge him.
- After Mr Gill died, Mrs Gill paid Mr Kitching for the work he did. He would go to the farmhouse to obtain payment. He knocked on the door, Mrs Gill would answer the knock and open the door to him and he would then walk into the porch area. Mr Kitching would explain to Mrs Gill that he had finished the work and he would present her with the bill which she looked at, often she would say - "oh we had better have you paid then". Mrs Gill would then go into the house, collect her cheque book and return to the porch where she would write out the cheque for Mr Kitching. According to him, this occurred in 3 successive years. He would chat with Mrs Gill and she would talk about the weather, he would talk about the view from the farmhouse and he would have to do the running so far as making conversation was concerned because Mrs Gill was a bit quiet. According to Mr Kitching, Mrs Gill responded to what he said, she was able to understand the bill presented to her for payment and she was able to complain about it by saying - "it is going up a bit like".
- Over the years, Mr Kitching had seen the Claimant at the Farm working. He would be at the Farm sometimes for a period of one and a half weeks and his statement that the Claimant took care of her parents was based upon his observations of Mrs Gill getting up on a morning at 10.30 to 11.00 and he then observing the Claimant arriving in her red Volvo motor car most mornings when he was there. Mr Gill never said anything to Mr Kitching about what would happen to the Farm on his death.
Mrs Joyce Dale
- Mrs Dale's witness statement and a letter written by her dated the 1st of August 2007 were admitted as her evidence in chief.
- Mrs Dale was the Claimant's best friend at school She met Mrs Gill for the first and only time after the conclusion of the Claimant's 15th or 16th birthday party at the Claimant's home.
- Mrs Gill did not greet or say goodbye to any of the party guests and was not present at any time during the party. She put her head around the kitchen door a long time after all the other guests had gone apart from Mrs Dale and her parents. When Mrs Gill saw them she looked startled but Mrs Dale's mother started talking to Mrs Gill and they had a conversation. Mrs Dale was not introduced to Mrs Gill and she could not remember exchanging any words with her.
- Mrs Dale accepted she did not know Mrs Gill personally. Her description of Mrs Gill as - "odd", in her witness statement, was based upon what the Claimant had told her at school. Mrs Dale thought it extremely strange that Mrs Gill did not do her own grocery shopping and that when there were school events, from which the Claimant had to be collected, Mrs Gill never appeared. It was always Mr Gill who collected the Claimant. Further Mrs Gill never invited relatives to her home. When the Claimant and Mrs Dale left school they drifted apart and their lives went in different directions though Mrs Dale went to stay with the Claimant in Leeds 2 to 3 years after they left school. Further the Claimant was invited to Mrs Dale's wedding in 1987/1988 and Mrs Dale together with her parents visited White House Farm soon after it was purchased by the Claimant and Dr Baczkowski. On that visit, whilst Mrs Dale's father was talking to Mr Gill, the Claimant was talking to Mrs Dale's mother. Mrs Dale, herself, was occupied by her young children. In the course of his conversation with Mr Gill, Mrs Dale's father commented that the Claimant and Dr Baczkowski had taken on a lot of work. To this Mr Gill replied that the Claimant would be on hand to see to Mrs Gill and the Farm.
- Mrs Dale could not remember whether it was her father or Mr Gill who commented -
"after all it'll all be hers one day"
but they both nodded in agreement.
- When pressed by Mrs Talbot-Rice, Mrs Dale stated that she heard the entire conversation between her father and Mr Gill and the specific phrase she had identified stuck in her mind. When asked if it was her father who had said the phrase Mrs Dale's evidence was that it would be very easy to say it was Arthur (Mr Gill) but she could not honestly remember which of them said that, it could have been her father and Arthur agreed with what was said or it could have been Arthur and her father agreed with him.
- Mrs Talbot-Rice postulated that if it had been Mrs Dale's father who had made the statement, it was also possible that Mr Gill just did not respond at all. Mrs Dale's evidence was quite clear that Mr Gill did respond because both her father and Mr Gill were nodding slowly. Mrs Dale told the Court that the specific conversation which had taken place between Mrs Gill and her father was then related by him to her mother during their journey home.
- Mrs Dale's evidence was that Mrs Gill was odd but this was based upon what people, including the Claimant, had said and not Mrs Dale's first hand knowledge or experience of Mrs Gill. Mrs Dale's mental picture of Mrs Gill was based upon drip feeds or snippets of information over a large number of years commencing with when she and the Claimant were at school together. Snippets which included being told that Mrs Gill never did the grocery shopping, never invited people, even relatives, to her home, about Mrs Gill's reclusiveness including not allowing a carpet fitter into the house.
- The Claimant formulated a plan for the care of Mrs Gill, whilst she and Dr Baczkowski spent some time in Norway. The plan involved Mrs Dale staying at White House Farm, checking on Mrs Gill, and being available by phone. Mrs Dale would have attended each day upon Mrs Gill at the Farm and the Claimant had hoped that Mrs Gill would be able to cope with these arrangements, considering the plan was a workable one. However, the plan was not put into effect.
- After Mrs Dale's mother died in 2002, the Claimant told Mrs Dale, in the course of a conversation, that there would a real mess to sort out when Mrs Gill died. According to Mrs Dale, Mrs Gill had told the Claimant that everything had just been left to each other and her father's will had never been properly sorted out because, after her father's death, her mother really didn't want to discuss it. Mrs Dale suggested to the Claimant that it would be easier if there was a will and said to the Claimant - "there is no way you could get your mother to go to a solicitor, I suppose" and the Claimant replied - "no of course not". Mrs Dale then stated - "could you not get a solicitor to come to the house?" and the Claimant replied - "she just wouldn't raise that with her mother because it would be too upsetting for her mother".
Mr Willie Gill
- Mr Willie Gill's witness statement dated the 7th of May 2008 was admitted in evidence.
- He was cross examined by Mrs Talbot-Rice and he confirmed that he was the younger brother of Mr Gill and one of 9 children.
- He described Mrs Gill as a quiet person who seemed always to be working on the Farm, Apart from being quiet there was nothing unusual about her. In the 1950s, Willie Gill worked for Mr Gill at Brookfields Farm and saw Mrs Gill. He would go into the farmhouse and have a cup of tea. Mrs Gill worked a lot with rubber gloves on and she was always working and did not even sit down to have a cup of tea with Willie Gill.
- Mr Willie Gill described his brother as wanting things doing straight away when he wanted things done and if they were not then he would blow his top. The last time Mr Willie Gill and Mr Gill spoke to each other was in 1966 when Mr Willie Gill went to see him to recover the title deeds to properties owned by their mother of which Mr Gill had possession. Mr Gill then fell out with the rest of his family and did not speak to Willie Gill ever again. Mr Gill did not attend the funeral of either his mother or his father.
- In response to questions from the Court, Mr Willie Gill described Mr Gill as being very bossy as a child, that he was favoured by their parents and as an adult Mr Gill was very bossy and very demanding. Mr Willie Gill described his brother as having a temper - "next to none" and that he would "go off the deep end and then he would go may be a day or two before he would talk to you again".
Mr David Adamson
- Mr Adamson made two witness statements, both of which were admitted in evidence under the Civil Evidence Act. He did not give oral evidence and his evidence was therefore untested by cross examination.
The evidence for the Third Defendant
Mr Neville Kitching
- Mr Kitching's witness was admitted as his evidence in chief and he was then cross examined by Miss Angus.
- In the course of the cross examination, Mr Kitching told the Court that only a relatively small area of his farm land bordered that area of the Farm known as No via Scotia and the land of Mr Kitching's farm closest to White House Farm was approximately half a mile distant therefrom.
- Various photographs taken by Mr Dawson were produced to Mr Kitching copies of which lie at trial bundle E3 pages 367, 382 and 178.
- Mr Kitching accepted it would have been very difficult for him to identify the person or persons working in any particular field of the Farm at any given time from a position on his own farmland. He told the Court that he had never seen Mr Derek Kitching or Mr Gill doing the combining on the Farm. He did not remember seeing Mr Hansell or Mr Noble working on the Farm. Further, he could not say whether the Claimant and/or Dr Baczkowski had done the work on the Farm which they said they had done and he accepted that the people who had carried out farming activities at the Farm, such as Mr Adamson, Mr Noble, Mr Derek Kitching and Mr Pennock would know better than he as to what work had been done on the Farm by whom it had been done and when.
Mr John Lesley Smith
- The witness statement of Mr John Lesley Smith was admitted in evidence.
- When cross examined, Mr Smith told the Court he was born in 1961 and when he was 16 years of age he worked for one year at Summerfield Farm as a farm labourer. The Farm was and is visible from Summerfield and from Thornhill Farm where Mr Smith had worked for some 24 years. However, Mr Smith confirmed that not the whole of the Farm is visible from Thornhill Farm. One cannot see the fields known as Goldsboroughs, White House field, House field and one cannot see parts of Trackside and Woodside.
- Mr Smith was shown some photographs and a plan taken and prepared by Mr Dawson and, in response to Miss Angus' questions, gave evidence which established that parts of the Farm are not visible from Thornhill Farm and even in the case of those parts which are visible it would be very difficult to identify individuals within farm vehicles working on the Farm and in respect of other parts of the Farm it would be impossible to identify persons within farming vehicles situated thereon.
- The Claimant's evidence, as set out in her third witness statement, dated the 8th of May 2008, of the work she did at the Farm was put to Mr Smith and he stated, quite candidly, that he had no reason to doubt what she said in relation thereto. He also agreed with Miss Angus that Mr Adamson, Mr Noble, Mr Hansell, Mr Pennock would all be in a better position than he to say what jobs had been done by the Claimant and/or Dr Baczkowski on the Farm.
- When asked why he was not surprised that Mr and Mrs Gill left their estates to the Third Defendant, why they chose not to leave their estates to their daughter, the Claimant, and why this fitted in with what he knew of Mr and Mrs Gill's characters, Mr Smith's evidence was that he always thought Mr Gill was a private man but he was unable to provide any other explanation of, or ground upon which he relied for, those passages in his witness statement.
- Apart from appearing to Mr Smith to be a private man, Mr Smith knew nothing else of Mr Gill's character and he knew nothing of Mrs Gill's.
Mr Howard Lesley Kitching
- Mr Kitching's witness statement stood as his evidence in chief.
- In response to questions posed by Miss Angus, Mr Kitching told the Court he rented a livestock building and an open barn at the Farm. He was shown round the buildings by the Claimant with whom he discussed the installation of water troughs. Mr Kitching did not have direct knowledge of the circumstances in which the rental agreement for the 2 buildings came to be drawn up. A letter of the 22nd of February 2001 evidenced the agreement having been drawn up or prepared by Mr Christopher Arundel of Messrs. Addisons, Barnard Castle. Mr Kitching, however, could not say it was incorrect that the Claimant gave instructions for the preparation by Mr Arundel of the agreement. He told the Court that he paid rent to Mrs Gill. He did so by cheques which he handed to the Claimant or posted through the letterbox of the farmhouse.
- At paragraph 7 of his witness statement, Mr Kitching states that he was not surprised that Mr and Mrs Gill left their estate to the Third Defendant rather than to their daughter, the Claimant. He expressed the view that the whole family were so strange that nothing would surprise him. When questioned in relation to these statements, Mr Kitching gave evidence that he had spoken to Mr Gill only once when Mr Gill had walked past him without acknowledging him. He met Mrs Gill only the odd time when he passed the house at the time. He actually said to the Court that "if she ever saw him coming down the drive she would scuttle into the house. It was as if she couldn't stand to see anybody".
- Mr Kitching did not know anything else about Mr and Mrs Gill. He had heard rumours about them and had heard what other people had to say about them. That which he sets out in paragraph 7 of his witness statement was based upon nothing more than his view that to leave their estate to the Third Defendant was a strange thing for Mr and Mrs Gill to do. He said he found what they had done to be "appalling".
Mr Steven Dawson
- Mr Dawson corrected his witness statement dated the 9 of May 2008 and upon such correction and confirmation of the truth of the corrected witness statement it was admitted in evidence. He was then asked questions by Miss Angus in the course of which Mr Dawson confirmed that on the 14th November 2007 at Stansted airport Mr Adamson did tell him that sometimes when Mr Adamson went to the Farm, Mr Gill would mention to Mr Adamson that he was going to leave the entire Farm to the cat's home.
- Mr Dawson was cross examined as to the accuracy of his witness statement in relation to when he lived at Hutton Grange Farm, Swainby, 18 The High Street, Swainby, the years of the deaths of his grandparents, the renting out of Thornhill Farmhouse, when he took up occupancy of Thornhill Farmhouse and other historical matters. He was questioned in relation to various photographs which he had taken of the Farm and of the ability to identify drivers of farming vehicles at various points on the Farm when viewed from various positions on Thornhill Farm, Mr Dawson was also cross examined in relation to photographs which he had taken of the Farm from Parsons Back Lane and he confirmed that when standing on that lane looking at the northern side of the Farm it would be impossible to tell who was driving a farm vehicle on the Farm. In fact, Mr Dawson confirmed that unless a farm vehicle was within 20 yards of a person viewing it then it would be very difficult to see who was inside the vehicle.
- It was Mr Dawson's evidence that, prior to 1997, Mr Gill might have done some small jobs on the Farm but once Mr Wardman commenced working thereat in 1997, Mr Gill did nothing. He accepted that people like Mr Adamson and others who had worked at the Farm are in a better position than himself to comment on exactly what work was done on the Farm by members of the Gill family and he expressly stated that he was not in a position to give evidence contrary to their evidence.
- Parts of Mr Adamson's witness statement, which addresses the nature and extent of the work done on the Farm by the Claimant and Dr Baczkowski were put to Mr Dawson who said he was not in a position to dispute what Mr Adamson said. He also confirmed he was not in a position to dispute the Claimant's evidence of the work which had been done on the Farm by herself and her husband as detailed in paragraph 56 of her third witness statement. He confirmed to Miss Angus that he had deliberately chosen invoices submitted to Mr Gill by Adamsons for contracted Farm work in the year September 1995 to September 1996, which was one season, to make the point, which the Third Defendant wished to make, which was that the work was done predominantly by Adamsons prior to 1997, He accepted that the year which he had chosen was not a typical year despite what he said at paragraph 6.1 of his witness statement. He also accepted that, despite what was stated in paragraph 6 of his witness statement about being asked to comment on the extent of the work that was carried out by David Adamson as disclosed by the accounts of the Farm, for the period 1987 to 1997, and despite him having provided comments in relation thereto he has not actually looked through the accounts of the Farm for that decade.
- He told the Court that when he learnt that the Farm had been left to the Third Defendant he was not shocked. He felt that Mr Gill had behaved very oddly towards him and because he had done so the fact that he said something odd in his will did not surprise Mr Dawson even though nothing in what he had done towards Mr Dawson would suggest that Mr Gill was going to benefit the Third Defendant.
Dr Anthony Walters
- Dr Walters who was called as a witness for the third Defendant made a witness statement dated the 7th of May 2008 and a supplemental witness statement dated the 30th of June 2008 both of which were admitted in evidence.
- Dr Walters was examined in chief by Mrs Talbot-Rice in relation to Mrs Gill's medical records held by her General Practitioner's surgery with particular reference to the entries therein which recorded her attendance at the surgery when accompanied by the Claimant together with telephone conversations etc between Mrs Gill's General Practitioners and the Claimant in relation to Mrs Gill.
- Dr Walters confirmed that Mrs Gill had not complained to him of symptoms of racing heart beat, rapid breathing, feelings of raised temperature, sweating, nausea, trembling, dizziness or faintness. He further stated that had Mrs Gill presented herself to him with those symptoms, but had not complained of them, he would probably have made a note of them.
- Dr Walters confirmed that over the period 1999 until her death, Mrs Gill was seen by 7 different hospital departments and none of the hospital doctors who saw her reported to Dr Walters Mrs Gill presenting those symptoms.
- Cross examination of Dr Walters by Miss Angus elicited that Mrs Gill had been a patient of the surgery from 1957 and of Dr Walters since 1999. Over that period of time Dr Walters had never once spoken to Mrs Gill on the telephone. Any telephone conversation he had in relation to Mrs Gill had been with the Claimant.
- Dr Walters could not remember Mrs Gill's demeanour when she physically attended upon him at the surgery. He could not recollect whether she tended to underplay her symptoms. He would converse with Mrs Gill and ask her questions in order to secure information from her. By reference to the medical notes, Dr Walters confirmed that in March 1999 Mrs Gill was suffering from severe cellutitis in the right lower leg which resulted in the Claimant administering intravenous injections of penicillin at home because Mrs Gill had refused point blank treatment as a hospital in patient or treatment by the nurse at the surgery.
- In November 1999 Mrs Gill attended the surgery with symptoms of arthritis and was described by Dr Walters, in Mrs Gill's notes, as a difficult historian which he mentioned in his letter of referral to Dr Isdale so as to warn him that he might have to probe him for information on Mrs Gill.
- Entries in Mrs Gill's notes for the 16th and 22nd of March 2000 record communications between the surgery and the Friarage hospital which, in turn, identify her reluctance to take tablets on a regular basis but keen to try a herbal remedy. Mrs Gill was also reluctant to being admitted to hospital when she suffered her heart attack and an entry in her notes for April 2000 records Mrs Gill's refusal to take a GTN spray as she did not wish to have the side effects. The same entry records that she was very anxious and upset regarding her admission to hospital but Dr Walters gave evidence that somebody who was having a heart attack would be anxious.
- On the 16th of January 2002, Mrs Gill attended upon Dr Walters at the surgery, accompanied by the Claimant, complaining that since the previous summer she had been suffering from epigastric pain and taking Zantac daily, Mrs Gill was referred to Mr Ward at the Friarage hospital but expressed reluctance to attend the hospital and was quite fearful of the possibility of a gastroscope. However she acted upon Dr Walters'advice. Mrs Gill underwent an upper G.L endoscopy under sedation as a day case on the 4th of February 2004. She was then advised of the need for a colonoscopy or a barium enema to exclude carcinoma but she declined to undergo the same when speaking to Mr Ward.
- Dr Walters considered that Mrs Gill might have underplayed her symptoms because of her reluctance to undergo further treatment. However on the 28th of June 2002 she decided to go ahead with the investigatory procedures and Dr Walters informed Mr Ward of that decision by letter dated the 1st of July 2002.
- Mrs Gill had a barium enema that August and a sigmoidoscopy in October 2002.
- Dr Walters was cross examined in relation to Mrs Gill's facial carcinoma and varicose veins for which she underwent treatment in December 2003 and October 2005 respectively. He confirmed that the conditions from which Mrs Gill suffered were serious and significant, that she demonstrated an unusual reluctance to impart information to health professionals generally and it was necessary to probe to get accurate information from her. According to Dr Walters when cross examined, Mrs Gill also demonstrated an unusual reluctance to accept any form of treatment from health professionals and the thought of treatment, including any sort of investigatory procedure, made her anxious and fearful. Mrs Gill would only agree to undergo treatment if she was pushed into it and she had a desire to avoid further contact with health professionals. The thought of seeing health professionals made her anxious and frightened and she would demonstrate a desire to avoid prolonging whatever contact she did have with those health professionals.
- Dr Walters expressed the view that he did not know why the Claimant accompanied Mrs Gill on her visit to the surgery. He told the Court that Mrs Gill understood, or he hoped she understood, what was going on when she attended upon him. He addressed himself to Mrs Gill and believed the conversations were three way with the Claimant participating in them. Dr Walters had no suspicions that Mrs Gill was suffering from any form of mental/psychiatric disorder.
- In re-examination, Dr Walters confirmed that when he referred Mrs Gill to Mr Ward at the Friarage hospital in relation to her palpable epigastric mass in January 2002, she was frightened and anxious and that he did not regard such anxiety and fear as unusual either in Mrs Gill or by normal standards. He confirmed that on the 23rd of May 2002 Mrs Gill attended upon him unaccompanied at the surgery when they discussed the potential carcinoma and she denied any concerns in relation to the same.
- In answer to the question from the bench of:-
"Can you recollect any occasion when you saw her, whether she was with her daughter or not, when you were concerned as to her ability to understand what you were saying to her". Dr Walters gave the clear and emphatic reply: "no".
- He also explained that though the thought of treatment made Mrs Gill anxious and fearful she was not unusually anxious or fearful given the seriousness and significance of her conditions - potential cancer and a quite severe heart attack.
- The desire on the part of Mrs Gill to avoid further contact with health professionals was said by Dr Walters to be a desire on her part to avoid further investigatory procedures rather than people.
Mr Dennis Richard Argyle
- Mr Dennis Argyle was the solicitor who prepared both Mr Gill's and Mrs Gill's wills. He was admitted as a solicitor in 1957.
- Mr Argyle's witness statement was admitted as his evidence in chief but he also provided oral evidence in chief which included his statement that if there had been any sign of any undue influence being exerted upon Mrs Gill at the time she executed her will in his presence he would have halted the proceedings then and there. If, when Mr Argyle met with Mrs Gill, she had appeared to him to be so frightened that she had an overwhelming impulse to leave his office he would have terminated the meeting immediately.
- In response to questions posed by Miss Angus in cross examination, Mr Argyle indicated he had no recollection of meeting Mr Gill and/or Mrs Gill. He could not recollect preparing Mrs Gill's will. He had never been to the Farm. He told the Court that in 1984, he became a partner in Hunt & Wrigley having a general practice until he retired in 1996. The firm had a strong agricultural practice, predominantly the conveying of estates and, to a lesser degree, the administration of estates. Mr Argyle prepared wills on average once or twice per week. The instructions for the preparation of the wills which he prepared were taken at face to face meetings by himself. Mr Argyle explained the procedure which was followed when a client contacted the firm with a view to making a will and the layout of the firm's premises. His evidence was that if a husband and wife came to the firm's premises to make an appointment, an appointment would be made for them to be seen together. The appointment would be made by Ivy Donaldson, the firm's receptionist. Mr Argyle would not send out a letter confirming the appointment and at the first appointment with him he would discuss with the clients the fee payable. He told the Court that the fee for mirror wills was £75.00 and when quoted to the client that fee would be stuck to. If a search of the firm's Wills Registers (originally a book and then subsequently a card index system) failed to reveal the existence of a will of the relevant client held by the firm, the client would be asked if they had an existing will. Mr Argyle would check the contents of the existing will, if held by the firm, and, if not, he would ascertain the contents of the existing will by questions asked of the client. If a family member was not to be included in the intended will, or if he was provided for in an existing will but was not to be included in a replacement will, Mr Argyle would ask the client to indicate their reasons for adopting this course of action. He may have asked whether these reasons were financial or personal. If the client had not previously made a will and told Mr Argyle he was proposing to leave his entire estate to charity, Mr Argyle would, at that point ask the client if they had next of kin. If the client said they did, Mr Argyle would ask for the client's reasons for excluding the next of kin from the client's will. If the reason was financial, and if the next of kin was a minor child at the time, Mr Argyle would enquire whether the child had been adequately provided for financially. If the client told Mr Argyle that he was intending to exclude from his will his only child, and that the child was an adult, Mr Argyle would advise the client that it was possible for an adult child to bring a claim under the Inheritance Act and if the client then asked questions of Mr Argyle about the possible claim, he would answer them. If he did not ask any questions, Mr Argyle would let the matter rest there.
- Mr Argyle was taken to clause 5 of both Mr and Mrs Gill's wills. His evidence was that clause 5 was a form of declaration which he put into a will where a client had indicated to him that he was excluding a close family member from his will and the reason for the exclusion was financial.
- Mr Argyle explained that after taking the client's instructions he would prepare a draft will which was then sent to the client with a covering letter asking the client to make an appointment to meet with Mr Argyle for the purpose of signing the will.
- If the clients were husband and wife together, they would both be asked to make an appointment for that purpose. He confirmed that if a spouse attended at Hunt & Wrigley's offices saying that both spouses would like to make mirror wills in a particular form which was then explained, Mr Argyle would prepare draft wills for both spouses, send the drafts to them requesting both to attend upon him to execute the wills and to raise any queries they might have in relation thereto. When husband and wife attended, in response to receiving their draft wills and their covering letters, Mr Argyle would see them together. He would ask them if they had read their draft wills and if they wished to make any amendments to them. He would then read the wills out loud to them, clause by clause from the very top to the very bottom explaining the effect of each clause and he would ask them if they had any queries and if they did, he would answer the queries raised. Upon the husband and the wife confirming that they understood the position and they were happy with the wills, and if partners in his firm were appointed executors by the wills, he would get both Pauline Smith and Ivy Donaldson to attend to witness the spouses' execution of their wills. Mr Argyle would date the wills and he would either then give copies of the wills to the clients or send copies to them with his bill. Sometimes the client did not want a copy and were content for Hunt & Wrigley to keep the original and if that was the position then the client was not provided with a copy of the will.
- In May 1993, the will file for Mr and Mrs Gill would have been archived in the loft of the firm's premises and a record thereof made in the wills register. The wills themselves would then be stored in strong boxes in a room behind the boardroom. The wills file would be routinely destroyed by Mr Woodall as the senior partner when more than 10 years old.
- The Court posed a hypothetical situation to Mr Argyle which was that if he had a farming couple as clients and it was known to him that they were a farming couple who had one next of kin, an only child, would he in any way vary his interview procedure, Mr Argyle's response to this question was that he did not think he wouid. If in the aforesaid knowledge he was toid that the child was to be excluded from the will, he would ask whether the reason for this was financial. If they said it was he would not raise the question of any personal aspects. The Court then asked Mr Argyle if the farming couple gave instructions in terms that adequate financial provision had been made for their only child and that they wished, on the deaths of the survivor of the 2 of them, for the whole of the survivor's estate to go to charity, would he vary his procedure in any way. Mr Argyle's reply was - "no".
- In re-examination, Mr Argyle said he had no recollection of taking instructions in relation to Mr and Mrs Gill's wills but he thought it likely he took instructions from both Mr Gill and Mrs Gill as opposed to just from Mr Gill.
Mrs Ivy Ann Donaldson
- Mrs Donaldson provided witness statements for the Claimant and for the Third Defendant. They lie at trial bundle 1 tab 19 and trial bundle 2 tab 3 respectively. She confirmed the truth of the contents of both witness statements. Some questions were asked of Mrs Donaldson by Miss Angus but in my judgement they did not take the matter further.
Pauline Smith
- Pauline Smith's witness statement was admitted in evidence. Cross examination of Pauline Smith by Miss Angus was directed at establishing that those parts of her witness statement which addressed the procedure adopted by Mr Argyle, when taking instructions from clients for the preparation of the wills, and when explaining the contents of the wills to them prior to execution, were assumptions on her part based upon her experience of Mr Argyle. This was established and Mrs Smith readily acknowledged that Mr Argyle would have a better knowledge of these matters than she did.
Mr Nicholas Hall
- Mr Hall's witness statement was admitted in evidence. He is a partner in the firm of Hunt & Wrigley. During cross examination Mr Hall confirmed that his practice is predominantly private clients and litigation. He confirmed that there was no documentary evidence available at Hunt & Wrigley of the archiving or destruction of Mr and/or Mrs Gill's wills.
- Mr Hall was taken to an attendance note prepared by Mary Preston of Hunt & Wrigley at 10.07 am on the 21st of August 2006 in respect of the telephone conversation with the Claimant, a copy of which lies at page 232 of trial bundle El.
- This attendance note reads :-
"Christine Angela Gill telephoned.
Her mother is in the Friarage hospital receiving palliative care - she will not be coming out - JOYCE MARY GILL - will herewith.
Father died in April 1999 having made a will which was not proved. Mother never made a will. Household, garden maintenance bills etc.
are now due. Miss Gill has never seen a copy of her father's will and does not know if she is mentioned. Can you please ring her on her mobile No. 07816 061946 and explain the situation to her. She would prefer making an appointment and can come in any time. She has found the title deeds to her parent's property and can bring these in for you to look at.
Miss Gill is an only child and father's name and address is as follows;-
John Arthur Gill
Potto Carr Farm
Ingleby Cross
Northallerton
North Yorkshire - will herewith.
M.E.P.
Mr Argyle made the wills".
- Mr Hall's evidence was that the phrase - "will herewith" was probably written after the phone call because Mary Preston must have gone and got the will. The phrase - "mother never made a will" suggests that Dr Gill had left Mary Preston with the impression that Mrs Gill had not made a will.
- It was suggested to Mr Hall that the fact the Claimant had mentioned she was an only child was consistent with her idea that her mother had not made a will in that it was relevant the Claimant was Mrs Gill's next of kin. Mr Hall's evidence was - "yes, I suppose if you were looking at it from that angle, yes".
- At page 234 of trial bundle El is a note of a telephone call made by Mr Hall. His evidence was he had made the outgoing phone call probably in the afternoon of the 21st of August to the Claimant's mobile telephone. Mr Hall could not remember the precise message he left the Claimant on her mobile telephone. His evidence was that he certainly would not have disclosed the terms of the will in the message but it is possible he mentioned the existence of a will However he thought that had he said there was a will, and he had located it, he would probably have said something in the note of the telephone call about such.
- On the 22nd of August 2006, the Claimant telephoned Mr Hall. Her mother, Mrs Gill, had died the evening previously.
- Mr Hall stated the file note of the 22nd of August 2006 would have been dictated by him very shortly after this conversation with the Claimant was concluded. A copy of the file note lies at trial bundle El page 235 and it reads :-
"NAJH engaged receiving a returned call from Christine Angela Gill on the 22nd of August 2006. Her mother had died in the Friarage yesterday and she really wanted to know what the position was. She knew that her mother had a will but NAJH saying that he was not at liberty to disclose the terms of the will at present. She will drop off the Death Certificate and so on tomorrow and NAJH will then contact her because there are some urgent matters that need dealing with and in particular there is a Farm Contract on Potto Carr Farm which will need to be considered and various bills which she thought required immediate attention. She appreciated that NAJH had to be careful what he said at this stage. She knows that the Partners in the firm are the executors. She said that obviously she wouldn't want to be paying anything if everything had been left to the Dogs Home but NAJH not being drawn on that point.
Time engaged on the telephone - 6 units".
- Mr Hall told the Court that this note records exactly what he was told. The impression he got from his conversation with the Claimant was that she knew there was a will. His note is a record of what was said to him during the course of the telephone conversation with the Claimant. It was put to Mr Hall by Miss Angus that in the note Mr Hall was recording the fact that he told the Claimant there was a will. Mr Hall rejected this suggestion. He also confirmed the note records that the Claimant knew Hunt & Wrigley were executors. Mr Hall was clear in his evidence that the Claimant knew, at the time of this telephone conversation, of Hunt & Wrigley being executors of her mother's will. Although his attendance note did not record any discussion between Mr Hall and the Claimant as to what that meant, and although the Claimant was adamant she did not know that Hunt & Wrigley were Executors, Mr Hall was clear and adamant the Claimant mentioned to him that she knew the partners of Hunt & Wrigley were the Executors. Mr Hall's evidence was that the Claimant had mentioned it to him he had not mentioned it to her. Mr Hall also told the Court that from the telephone conversations he had with the Claimant, and the meeting he had with her on the following day, the 23rd of August 2006, he believed she had a very good idea of what Mrs Gill had done in the terms of her will. At the end of this telephone conversation, the Claimant said to Mr Hall that she would not want to be paying anything if everything had been left to the Dogs Home. Miss Angus put it to Mr Hall that this, would "chime" with him because he knew the contents of the will. Mr Hall agreed. However he did not accept that this comment of the Claimant was one born out of the stress and grief that she was suffering and nothing more than that. This suggestion was rejected by Mr Hall who said that the comment was much more a matter of fact statement. It was not a throw away comment. It was said to him in a clear way. Mr Hall's attendance note, he said, records verbatim what the Claimant had said to him.
- On the 23rd of August 2006, a meeting took place between the Claimant and Mr Hall at which she produced the Death Certificate. Mr Hall's attendance note of that meeting records that it lasted some 18 minutes on the afternoon of that day and it reads :-
"NAJH engaged attending Christine Angela Gill, Joyce Mary Gill's daughter, who had come in to drop of the Death Certificate. NAJH meeting with her briefly and advising her that unfortunately she had not been provided for in the will.
She was not pleased about this but NAJH saying that obviously as executor of the estate we had to administer matters in accordance with the will and she said that she wished to challenge that will. NAJH saying that he couldn't discuss that with her further but advising her that she would need to take independent legal advice if that was what she wished to consider. Providing her with details of the solicitors in town. She still has the deeds of the property and NAJH advising her that the executors will need those deeds to be able to administer the estate. She appreciates this but said that she would probably try and take some advice first.
Throughout the course of the meeting NAJH not being drawn on the question of whether or not she was entitled to bring a claim but simply advising her that she would need to take independent advice. She was clearly not pleased however. The original Death Certificate is now on the file.
She advised that as far as she knew, the Farm was jointly owned but it is subject to a contractor agreement.
Time engaged attending Mrs Gill - 18 minutes on the afternoon of the 23rd of August 2006".
- Mr Hall's evidence was that when he informed the Claimant that she had not been provided for in Mrs Gill's will the impression that he had was that such did not come as a thunderbolt to the Claimant. His impression was that she had a good idea of what was in the will so it did not come as a huge surprise to her. The Claimant was not pleased but it was not an emotional upset. Mr Hall considered he would have been able to tell if the news had come as a great surprise to her but his impression was that it did not. Mr Hall emphasised that he made his note of the meeting a long time before the present proceedings were anticipated. He was clear in his evidence that the Claimant did not say to him "there is something wrong with that will, it cannot be right".
- Miss Angus, in response to a question from the bench, submitted that Mr Hall had been less than frank with the Court and had been partisan when giving evidence.
Mr Ian Crosslev Cartwright
- Mr Cartwright is a partner in the firm Hanby & Co which advised Mr Gill on the contents of the first draft of the Farm Sharing Agreement made between him and Mr William Wardman. His witness statement does not assist to any appreciable degree.
Mr Tim Gower and Mr Doug Hall
- The joint reports of Mr Tim Gower of Robin Jessop and Mr Doug Hall of Smith Williamson were admitted in evidence but neither attended a trial for the purpose of providing oral testimony.
The witnesses of fact for the Claimant and their reliability
The Claimant
- The Claimant is a highly intelligent well educated lady who has lived with this case since August 2006. She has spent a considerable period of time and effort in the preparation of a claim under the Inheritance (Provision for Family and Dependents) Act 1975 and the preparation, and pursuit, of her present action grounded upon the claims of lack of knowledge and understanding of the contents of Mrs Gill's will, undue influence and proprietary estoppel. In so doing she has visited and re-visited, in her own mind, the facts of the case and the documentation provided by way of disclosure. The Court listened carefully to the Claimant when she gave evidence and witnessed her demeanour when doing so. By her words and her demeanour, the Claimant presented as someone who had become consumed by this case and that which she considered was the justice of it. She was the only child of Mr and Mrs Gill and, as such, had expected to inherit the Farm and the farming business etc. Her parents' wills, and the consequences thereof to herself, her son and her husband, have been a substantial disappointment to her and she has been left with feelings of hurt and betrayal.
- The Claimant has sought in her own mind to search for explanations of her parents' conduct towards her, her son and her husband and of the perceived injustice of their position. The emotional upset, the inability to understand her parent's, reasons for the wills which they made, the feeling of betrayal which she holds and her desire to right the wrong which she considers to have been done to her and her family, have led the Claimant to at times exaggerate her evidence, to temper it to accord it with the case which she sought to advance and to be evasive in answering certain questions in cross examination when she considered those questions might cause her difficulty. Examples of this are;-
1. In her witness statement, she stated that after Mr and Mrs Gill purchased the Farm she continued to spend all her spare time away from her studies helping her parents at the Farm as she had done before. However, the letters from Mrs Gill to the Claimant evidence the fact that the Claimant did not return to the Farm every weekend or every other weekend during term time and often visited friends as opposed to Mr and Mrs Gill. When the contemporaneous evidence of the letters was put to the Claimant, she sought to deal with such by stating to the Court that - "by studies I suppose I equated some of my social life with that as well because I only had friends to do with college that I socialised with. So I associated the two";
2. The Claimant's evidence was that the amount of financial assistance provided to her by Mr and Mrs Gill during her student years was the odd gift of £10.00 or £20.00 whereas it is apparent from the letters written to her by Mrs Gill, and the manuscript accounts kept by Mr Gill that she received greater financial assistance from them than the odd gift of £10.00 or £20.00.
- The Court concluded that it was necessary to approach the Claimant's evidence with some caution. However, the Court is satisfied that the Claimant's tendency on occasions to exaggerate and to temper her evidence etc. was not the result of any dishonesty on her part.
Dr Andrew Baczkowski
- Dr Baczkowski gave evidence supporting the case advanced by the Claimant, his wife. It is probable, given their relationship, he and the Claimant had discussed this case frequently and in detail with the consequence that the Claimant's feelings of disappointment, betrayal, injustice and of the need to right a perceived wrong, will have influenced his attitude and the evidence which he gave in the course of the trial. On his own evidence he had a natural expectation that the Claimant would inherit the Farm because as he put it:-
"The Claimant was Mr and Mrs Gill's only child and she did so much for them".
and, when he and the Claimant got married, Dr Baczkowski believed that the Claimant would inherit the Farm. He remained of that belief/expectation throughout the time he spent on the Farm with Mr and Mrs Gill neither of whom disabused him of the same. When the Claimant did not inherit the Farm, on the death of Mrs Gill, it is probable Dr Baczkowski personally suffered a disappointment and both sympathised and empathised with the Claimant's feelings of betrayal and injustice.
- For these reasons, the Court has approached Dr Baczkowski's evidence with caution.
Mr Geoffrey Hansell. Mr Brian Noble, Mr David Pennock, Professor Kanter Mardia, Mr Peter Edwards, Mr John Flintoff, Mr Derek Kitching and Mr Willie Gill
- The Court formed the view that these witnesses were honest and reliable and that they sought when giving their evidence to assist the Court.
Mr Brian Swales
- Mr Swales' statement in paragraph 5 of his witness statement which refers to Mrs Gill going to meet a solicitor was based purely on his one meeting with Mrs Gill. Such is not a reliable basis for the statement but apart from that aspect of his evidence, the Court considered Mr Brian Swales a reliable witness.
The Reverend Linda Shipp
- The Reverend Shipp's evidence did not add to that provided by other witnesses. It was based upon what she had been told by the Claimant, she having never met either Mr or Mrs Gill.
Mr William Wardman
- Mr Wardman's statement at paragraph 39 of his witness statement, which is set out earlier in this Judgment, was an assumption on his part unsupported by anything said to him by Mrs Gill or the Claimant. It is not reliable. Apart from that aspect of the evidence, Mr Wardman was considered to be a reliable witness.
Mr Trevor Mason
- Mr Mason's oral evidence to the Court is to be preferred to that contained in his witness statement of the 6th of December 2006 in which he described Mr Gill as very strange and eccentric. This is because Mr Mason's use of the description "eccentric" would not accord with the generally held definition thereof. In addition he orally clarified his written evidence.
- Mr Robson's evidence did not accord with that which appears in his witness statement; for example, it became clear that paragraph 4 thereof was incorrect and he had not been asked by Mr Gill to collect the Claimant from school. Further, he had no knowledge of Mrs Gill having had a fit of nervousness. So far as the contents of paragraph 11 of his witness statement is concerned, Mr Robson confirmed, when cross examined, that he had no knowledge of the same. The Court approaches his evidence with caution.
Professor Stanley Wainer
- The Court accepts and relies upon Professor Wainer's oral evidence given under cross examination by Mrs Talbot-Rice and re-examination by Miss Angus.
Mr Philip Armstrong and Mrs Joyce Dale
- The Court prefers the evidence of Mr Armstrong and Mrs Dale given under cross examination by Mrs Talbot-Rice to their evidence on the same issues as set out in their witness statements. Where the evidence set out in their witness statements was unchallenged in cross examination that evidence is also accepted by the Court.
-
Mr Neville Kitching, Mr John Leslie Smith. Mr Howard Leslie Kitching and Mr Steven Dawson
- The evidence of these witnesses given orally when cross examined by Miss Angus is, in the Court's judgement, of greater detail than that set out in their witness statements, the contents of which were clarified and, in some respects, corrected in consequence of the questioning. The oral evidence of these witnesses is preferred by the Court to that set forth in their witness statements in relation to issues which were the subject of Miss Angus' cross examination.
Dr Anthony Walters
- Dr Walters attempted to assist the Court to the best of his ability. He presented as a careful caring man who found the Court process somewhat alien and daunting. He responded to non-leading questions better than to leading questions put to him in a manner which called for a yes or no answer or his agreement with the factual proposition being put to him by Counsel. His tendency when such leading questions were put in the course of what might be described as a vigorous cross examination by Miss Angus was to provide the agreement to the factual proposition which was being sought by Miss Angus or the one syllable answer identified by the way the particular question was put by her. In the Court's judgment this was as a result of Dr Walters' unease in the Court environment and the Court has, thus, approached and analysed his evidence with this in mind.
Mr Dennis Richard Argyle
- Mr Argyle was an old style family solicitor who conducted his work in a methodical manner. He had no recollection of Mr and Mrs Gill or the preparation of their wills. This was born in mind by the Court when considering his evidence as to his usual practice and that which he would have done and said when engaged to prepare the wills. The Court considered Mr Argyle to be a reliable witness.
Mrs Ivy Ann Donaldson and Mrs Pauline Smith
- The evidence of these two witnesses is reliable.
Mr Nicholas Hall
- Mr Hall gave his evidence in a straightforward manner. It was based upon and supported by reasonably contemporaneous file notes and was given in a calm and matter of fact manner even when his cross examination became vigorous. He sought at all times to assist the Court and Miss Angus' submission that he was being less than frank and partisan is rejected. However, the Court considers that his evidence was at times the product of his reading of his file notes and his interpretation thereof with the benefit of hindsight as opposed to his actual recollection of events.
Findings of fact
- These findings are additional to those facts set out as background earlier in this Judgment.
- The Claimant's life between being born and leaving school was spent with her parents at Brookfields Farm. From the age of 13 years she assisted with work on that Farm. The assistance provided by her increased in diversity and extent as she grew older. I accept that when not at school she would help Mr Gill by driving tractors and operating the grain drive. She would assist with potato picking and with harvesting and would do other jobs about the Farm. However, this would be during school holidays, when not at school and when not engaged on homework for her schooling or extra curricular activity.
- In 1968, when aged 18 years, the Claimant left Northallerton Grammar School and followed full time further education in the City of Leeds over a period of 11 years until 1979.
- The Claimant's father, Mr Gill, was a hard working traditional Yorkshire farmer. He 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. Mr Gill ran Brookfields Farm and, from 1975, the Farm in the way he desired and he did not involve Mrs Gill in the day to day management thereof. He considered that everybody should work for a living. He did not mix socially and would avoid social intercourse. He would not talk to others about his wife or family or his business or financial affairs and was somewhat of a character in his dress and appearance which was somewhat unkempt.
- As a young woman, Mrs Gill was bright and active. However, by the 1960s, she became reserved and uneasy about staying on her own at home. She developed a shy and timid personality. She became anxious about social events and started to avoid them. In the 1960s, when the Claimant was a pupil at Northallerton Grammar School, Mrs Gill would travel to the school, in the car, with Mr Gill. However, she remained in the motor car whilst he attended the parents evening or other function. Over the period 1970 to 1978, Mrs Gill, on occasions, went to shops in Northallerton, Stockton-on-Tees, Darlington etc. but she was driven to those shops by Mr Gill who, very often, accompanied her into the shops and remained with her whilst she did her shopping. Mr Gill would invariably do the shopping for groceries whilst Mrs Gill remained in the motor car awaiting his return from the shops. By the 1990s, Mrs Gill did not do any shopping of her own. It was the Claimant who performed this task. Up to the early 1980s Mrs Gill had sufficient confidence to talk to people, including strangers, who attended at her home. However, by the mid 1970s, Mrs Gill was becoming more and more anxious about attending social events which involved meeting strangers in any number. Despite being invited to the Claimant's degree ceremonies, and despite travelling with Mr Gill to both those ceremonies, she did not, and she would not, get out of the car upon her arrival. As a result Mr Gill attended both degree ceremonies whilst Mrs Gill remained in the motor car awaiting his return. There is no evidence to suggest other than Mrs Gill wanted to attend the Claimant's degree ceremonies and travelled from the Northallerton area to Leeds in order to do so, (a round trip of length: approximately 110 miles and of duration in excess of 3 hours), on two separate occasions but, on arrival, she felt unable to enter the building in which the ceremony was to take place.
- Mrs Gill was able to and did talk to people who were not family members. She entered into conversations with Mr Hansell, she spoke with Mr Noble on the telephone. She would speak to Mr Wardman, with Mr Armstrong and with Mr and Mrs Mason. Her discussions with Mr Armstrong would, on some occasions, last 10 minutes. They would talk about shooting and families. After Mr Gill's death, in 1999, Mrs Gill would deal with the payment of Mr Derek Kitching's bill and would discuss the same with him. In addition, she was capable of looking out for and did keep a look out for poachers on the Farm. She was able to verbally confront them from the door to or the vicinity of the Farm as she was able to chastise a postman who drove his van through her washing hanging on the washing line thereby blackening what she had put out to dry.
- However, these conversations were conducted by Mrs Gill when she was in, or in the vicinity, of her home and with persons who, in the main, were not total strangers to her. Even then, those with whom she conversed described Mrs Gill as very shy, on occasions reclusive, as not wishing to speak, not wishing to mix with people but to hide from them. Mr Wardman's evidence, in relation to Mrs Gill, provides a good description of her. She would not "directly interface" with him and would not directly approach him even when they were in her home. When outside the home, Mrs Gill would acknowledge his presence but "lower her head and scuttle back into the house".
- Even when in her own home, Mrs Gill experienced anxiety which, on at least one occasion, was severe as is evidenced by the symptoms which she exhibited to Mr Armstrong. When a potential deer hunter attended at the farmhouse, seeking permission to stalk deer on the Farm, Mrs Gill experienced what may be described as a panic attack. Mr Armstrong's description of Mrs Gill's symptoms of dampness on her face, literal shaking of her body and vocal stammering are consistent with what a lay person would describe as a panic attack.
- Mrs Gill did not like to be left alone in the farmhouse by herself. If the situation arose whereby she would be left by herself, she would go with Mr Gill to which ever area of the farmland he was intending to work and she would sit in the car whilst he carried out his tasks to the extent that she would sometimes sit there all day whilst Mr Gill got on with his work. In winter time she would actually sit in the motor car with a tarpaulin spread over the car in order to protect her from the weather. At other times she would follow Mr Gill about the farm and the farmyard whilst he moved from one job to another.
- In September 1985, the Claimant was engaged to be married to Dr Baczkowski. The wedding was arranged for the 14th July 1986. The Claimant and Dr Baczkowski discussed the marriage in advance and the arrangements therefore. Both of them knew, from their experience of Mrs Gill, that she would be very unlikely to attend the wedding if strangers attended the ceremony and that included members of Dr Baczkowski's family. For that reason the only member of Dr Baczkowski's family who was invited to the wedding was his mother. This caused some offence to members of Dr Baczkowski's family with whom he was, and is, extremely close. The reason this was done was because of Mrs Gill's anxiety at the prospect of meeting strangers at the wedding and the substantial risk that she would not attend the wedding because of this anxiety. Mrs Gill attended the wedding ceremony at County Hall but even refused to have her photograph taken and there is not one photograph of her even with her only daughter.
- On the 9th February 1987, Mr Gill was taken ill and drove both himself and Mrs Gill to the Friarage hospital. Mr Gill was admitted for emergency surgery and the Claimant was informed. When she and Dr Baczkowski arrived at the hospital, they found Mrs Gill still in the motor car which had been parked in the hospital car park. Despite the attempts of the Claimant, Dr Baczkowski and members of the nursing staff at the hospital, to persuade Mrs Gill to go into that hospital to see Mr Gill, she simply refused to do so. There is no evidence to suggest that she was not physically able to do so or that she did not have a desire to do so and it was probable that she was experiencing anxiety of such severity at the prospect of leaving the car and entering the hospital that such rendered her incapable of doing so.
- The anxiety which Mrs Gill experienced at the prospect of meeting strangers outside the Farm is illustrated by her attitude to the funeral of Mr Gill which was actually arranged by the Claimant. Mrs Gill would not even speak to the vicar about the funeral and insisted on no one being invited to or attending the same apart from the Claimant, Dr Baczkowski, their son Christopher and, of course, herself. On a balance of probabilities, this attitude, on the part of Mrs Gill, resulted from the anxiety she experienced at the prospect of strangers being present at the ceremony which she was to attend.
- The effect of this anxiety upon Mrs Gill is illustrated by the manner in which she conducted herself when getting ready to attend Christopher's school concerts and pantomimes which took place at 2.00 pm on the relevant day. Mrs Gill would get up early, she would worry, plan and fidget. She would take all morning to get ready. She would do her hair 50 times, change her mind some 50 times about what she should wear. She would not have time for lunch. Sometimes she would be in a state of exhaustion and she would say to the Claimant - "I just cannot do it". She appeared to the Claimant to be distressed, anxious, cornered and weak. She would not be able to stand. She would sit down and she would just be an empty cloth doll with all the stuffing knocked out of her.
- In these situations, Mrs Gill desired to attend the ceremonies, to go into the hospital to see Mr Gill, to attend the wedding and the funeral but the anxiety experienced by her, at the prospect of so doing, was so severe that she was rendered incapable of doing so and this aspect of the case will be reverted to later.
- On occasions Mrs Gill was capable of expressing and able to express her own mind in relation to medical advice and treatment. Such was the position before and after the death of Mr Gill. She declined to accept Dr Ramsden's advice in March 1999. She explained her reluctance to take the advised medication to a Rheumatologist nurse in March 2000. In April 2000 she refused to take a G.T.N, spray against medical advice. In February 2002 Mrs Gill declined a colonoscopy and/or a barium enema against medical advice. She was capable of and did question medical professionals including Dr Walters and this was so even though the medical advisor was a stranger and Mrs Gill was outside her home environment and in an alien one.
- Dr Walters described Mrs Gill as a difficult historian who was reluctant to take medication on a regular basis and to attend hospital for treatment and who was quite capable of expressing her reluctance to do so. He expressed the opinion that Mrs Gill demonstrated unusual reluctance, would only undergo medical treatment if pushed into it, was anxious and frightened when seeing health professionals and would demonstrate a desire to avoid prolonging whatever contact she did have with them. This evidence was provided in response to leading questions put by Miss Angus in her vigorous cross examination which questions were phrased in a manner which called for Dr Walters' agreement with a factual proposition put to him. For the reasons already set out in this judgment, the Court prefers the evidence of Dr Walters provided in re-examination where he explained and clarified some of the answers he had given to Miss Angus' questions. In particular, he told the Court that Mrs Gill's fear and anxiety, in the context of the referral to Mr Ward, was not unusual by either Mrs Gill's standards or normal standards. At no time did Dr Walters have any concern about Mrs Gill's ability to understand what he was saying to her and he explained that her desire to avoid further contact with health professionals was a desire on her part to avoid further investigatory medical procedures rather than the actual people.
- In 2005, she was able to spend 10 nights and days at the nursing home at Bedale where she came into contact with strangers, both other residents and staff. The Claimant knew that by placing Mrs Gill in the nursing home for that period of time she would be outside her home environment, in an alien one and would come into regular and frequent contact with those strangers. The Claimant's explanation for her not having informed the nursing home staff of Mrs Gill's condition is one which the Court has difficulty in understanding and accepting. It is important to note that it was not suggested Mrs Gill was incapable of remaining at the nursing home for the duration of her 10 day stay or that she reacted adversely to her stay at the nursing home. Further, there is no evidence to suggest that when at the nursing home, Mrs Gill experienced such a strong desire to leave the home that she was incapable of knowing or understanding what was said to her or of what she was doing etc.
- Mrs Gill held strong views in relation to the third Defendant and expressed those views. To the Claimant she described the third Defendant as a "bunch of townies", which, amongst members of the Yorkshire Farming Community, is not a complimentary description. Mr Armstrong gave evidence that Mrs Gill described the third Defendant as a "waste of time" or words to that effect.
- The conversation with Mr Armstrong took place after Mrs Gill made her will in April 1993. However given the attitude expressed by Mr Gill to Mr Armstrong and the Claimant, it is somewhat curious that by her will she made provision for the third Defendant and provision to the extent which she did.
- The evidence of the Claimant, and, of certain of the witnesses of fact who gave evidence, establishes, to the Court's satisfaction, that Mrs Gill had a very close, loving and caring relationship with the Claimant. Mr Armstrong's evidence was that Mrs Gill only ever praised the Claimant and that she was full of praise for her. This relationship of the Claimant and Mrs Gill is also evidenced by the terms and tone of the letters written by Mrs Gill to the Claimant in the 1970s.
- Mrs Gill was capable of standing up for herself against Mr Gill when she considered it appropriate or desirable to do so. Examples of such are Mrs Gill telling Mr Gill he could not write the letters he was writing in the terms he expressed, the expression to him of her views in relation to pigeons on the Farm and seeds for planting. She would argue with and stand up to Mr Gill, examples of such are her refusal to sign the conveyance of Brookfields Farm in June 1987 and her refusal to move to the Farm unless the dog was exhumed and re-buried at the Farm.
- However, Mr and Mrs Gill were a traditional Yorkshire family couple of their generation, the tendency amongst which was, and is, for the wife to defer to the husband. Further, in this case, the Court is satisfied that where 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. This was because of her fear of Mr Gill's bad temper and outbursts of fury. This was particularly so after Mr Gill 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. Mrs Gill was also concerned in relation to Mr Gill's health and the risks posed thereto by any substantial loss of temper on his part. She was further concerned to ensure that she did not lose the support and assistance of Mr Gill upon whom she was very dependent.
- Over the 11 year period 1968 to 1979 the Claimant followed further education. She lived in rented accommodation in Leeds. On the 1st October 1979 she took up a post as a Research Assistant at Leeds University.
- The Claimant's evidence was that Mr and Mrs Gill did not have much money to spare. They would give her presents on her birthday and at Christmas and the odd £10.00 and £20.00. A few months after her 21st birthday, in July 1971, Mr Gill bought the Claimant a second hand Morris 1300 car for approximately £600.00.
- In the year 1973/1974 when the Claimant was without a grant, Mr Gill paid her £100.00 per term. In the other 10 years when the Claimant followed full time further education, she received a grant and her tuition fees were paid by the local authority. Thus, on the Claimant's own case, Mr and Mrs Gill provided her with the car, £300.00 in the academic year 1973/1974 and the odd £10.00 and £20,00 as well as birthday and Christmas presents. However, according to Mr Gill's manuscript accounts, he and Mrs Gill paid the Claimant the following amounts out of the farming trading profits:-
| YEAR |
AMOUNT |
TRADING PROFIT |
| 1975 |
£375.00 |
£7,107.00 |
| 1976 |
£220.00 |
£830.34 |
| 1977 |
£140.00 |
£2,527.03 |
| 1978 |
£102.00 |
Not known |
| 1979 |
£42.50 |
£1,591.00 |
The Court bears in mind that these may be somewhat misleading because:-
1. Those accounts were prepared to minimise the net income of the farming business for income tax purposes;
2. The trading profit figures were after deduction of the payments made out of the business including those to the Claimant as identified in the second column of the table;
3. The amounts paid to the Claimant may have included reimbursements to her in respect of the costs of items purchased by her for her parents.
- In 1975 funds were provided to the Claimant to enable her to pay the road fund licence and insurance for her car.
- In each of the years 1975 to 1979, the amounts received by the Claimant from Mr and Mrs Gill were not substantial and she, to a very large degree maintained herself out of her grant.
- On the 7 of November 1986, the Claimant and Dr Baczkowski completed their joint purchase of White House Farm for £33,000.00 of which £13,000.00 was provided by Mr and Mrs Gill together with another £340.00 to cover the costs associated with that purchase.
- The provision of the Morris motor car, the £300.00 paid by Mr and Mrs Gill in the academic year 1973/1974, the funding of the road fund licence and car insurance in 1975, and the £13,340.00 contributed by them towards the purchase price, and the cost of purchase of White House Farm are the only gifts of substantial value made to the Claimant by Mr and Mrs Gill.
- By 1993, a new four bedroomed good-sized family house had been built at White House Farm and the Claimant and Dr Baczkowski moved in.
- From 1968 until 1975, the Claimant worked at Brookfields Farm in each of those years in the summer months of June to October. She did not work every day in each of those months but she regularly did so. She also worked on Brookfields Farm at other times in each of those years, at weekends but not every weekend and not every other weekend. After the Farm was purchased in 1975 the Claimant worked at both Brookfields Farm and the Farm in the summer months, at weekends and at other times of the years during holiday periods and times when away from her employment. After the Claimant's marriage to Dr Baczkowski in 1986, she continued to provide labour at the Farm at similar times of the years. Dr Baczkowski also laboured on the Farm. Their labours continued to be provided after they purchased White House Farm and after they moved into the house rebuilt thereat in the summer of 1993. Even after Christopher was born in 1997 both the Claimant and Dr Baczkowski provided their labour and they continued to do so after the death of Mr Gill on the 19th April 1999, The nature of the work done and labour provided by the Claimant are detailed later.
- Mr Gill and Mrs Gill made to the Claimant the statements and assurance of which she gave evidence and these assurances, the context and circumstances in which they were made, the intentions of the makers and the issues of reliance thereupon and detriment will be addressed in detail later in this Judgment.
- The wills dated the 29th of April 1993 were prepared and dated by Mr Argyle.
- The Court has concluded it is more likely than not that Mr Argyle would have adopted his normal procedure when he took instructions for, prepared, advised Mr and Mrs Gill in relation to and invited their execution of the wills of the 27th of April 1993. That being so the Court finds as follows.
- An appointment was made with Mrs Ivy Davidson for a meeting at which instructions were to be given for the preparation of Mr and Mrs Gill's wills.
- Enquiries were then made to ascertain whether a will was held for either of them by Hunt & Wrigley. Neither Mr nor Mrs Gill had made a will previous to the ones of the 27th of April 1993.
- Mr Gill and Mrs Gill both attended the meeting with Mr Argyle at the offices of Hunt & Wrigley. Mr Argyle informed Mr and Mrs Gill of the fee for the preparation of the wills and he enquired of them as to whether they had previously made a will. He was informed that they had not.
- Mr Argyle asked Mr and Mrs Gill to whom they wished to leave their property on their deaths. He was told that each of them wished to leave the property to the other and then to the Third Defendant. He enquired as to the existence of next of kin and was informed of the Claimant and that she was an only child of adult age. Mr Argyle asked whether the reason for Mr and Mrs Gill not making provision for the Claimant by their wills was because the Claimant had been adequately provided for financially by them or for personal reasons. He was informed that the reason was the Claimant had been adequately provided for financially. Mr Argyle then advised both Mr and Mrs Gill of the possibility of a claim under the Inheritance (Provision for Family and Dependents) Act of 1975.
- Subsequent to this meeting, Mr Argyle drafted mirror wills for Mr and Mrs Gill by the terms of which they left their estates to each other with the whole of the survivor's estate to the Third Defendant. He included in each draft, the clause 5 declaration. The drafts were then sent by post to Mr and Mrs Gill who received them. Each of these wills was 6 paragraphs and 1 ¼ pages in length and quite straightforward in terminology. It is more likely than not Mr and Mrs Gill both read the draft wills when received by them together with the covering letter requesting them to make an appointment to attend upon Mr Argyle for the purpose of raising any queries they might have in relation to their wills and their execution.
- An appointment was then made and both Mr and Mrs Gill attended the meeting with Mr Argyle at his offices. At that meeting, Mr Argyle saw Mr and Mrs Gill together. He then asked if they had read their draft wills and if they wished to make any amendments thereto. They responded that they had and that they did not wish to make any amendments, Mr Argyle then read out loud one of the wills as they were both in similar terms. He did so clause by clause explaining the effect of each clause as he did so and asked Mr and Mrs Gill if they had any queries in relation thereto. If they raised any queries he answered these queries and at the conclusion of the reading he asked them if they were happy with the terms of the will. They informed him that they were whereupon Pauline Smith and Ivy Donaldson witnessed Mr Gill's execution of his will and Mrs Gill's execution of her will in their presence. They both signed each will as the attesting witnesses and Mr Argyle then dated each will.
- In the course of his meetings with Mr and Mrs Gill, Mr Argyie did not detect any sign of Mr Gill exerting any undue influence upon Mrs Gill or of any fear or anxiety on her part.
- No subsequent will was made by either Mr or Mrs Gill and neither of them made codicils to their wills of the 27th of September 1993.
- Mr and Mrs Gill did not discuss the wills with the Claimant, Dr Baczkowski or any of the witnesses at the trial of this action, and the Claimant had no knowledge of, the existence of their wills prior to Mr Gill's death.
- Not long after Mr Gill died, the Claimant asked Mrs Gill if Mr Gill had made a will and she replied that she thought they both made wills leaving everything to each other. Mrs Gill did not mention the Third Defendant at all. When sorting through the office papers, the Claimant found the bill of Hunt & Wrigley dated the 28th of April 1993 which though referring to "instructions regarding your will" was addressed to both Mr and Mrs Gill, It was upon attending at the offices of Hunt & Wrigley, after this discovery, that the Claimant learned of the existence of Mr Gill's will but not the terms thereof. Hunt & Wrigley declined to provide a copy of the will to the Claimant who asked what would happen if nothing was done with the will. The Claimant was subsequently provided with advice as to the Farm and its legal ownership etc. The Claimant assumed that Mrs Gill had inherited the Farm and no steps were taken in relation to Mr Gill's will.
- The Claimant wrote the letter dated the 6th of December 1999 in which she described Mrs Gill as Executor and sole beneficiary of Mr Gill which description accords with this finding of fact as too does the Hunt & Wrigley file note of the conversation which the Claimant had with that firm's Receptionist on the 21st of August 2006.
- On the 22nd of August 2006, there was a telephone conversation between the Claimant and Mr Hall in the course of which the Claimant made the comment she would not want to be paying anything if everything had been left to the "dogs home". The Court accepts the Claimant's evidence that this comment was a chance remark by her and that she did not know the contents of Mrs Gill's will. In the Court's judgment, had she known that the whole of Mrs Gill's estate had been left to the Third Defendant it is more likely than not that the Claimant would have referred in this comment to the RSPCA and not "the dogs home". Further, the Court accepts the Claimant's evidence that in the course of this conversation she made no reference to the partners of Hunt & Wrigley being Mrs Gill's Executors. Her evidence in this respect is corroborated by that of Dr Baczkowski who overheard the conversation. It is probable that the entry in the file note concerning the Executors of the will was made by Mr Hall, The file note is not a verbatim record of the conversation between himself and the Claimant. It is a precis of the conversation. According to the note, the time engaged by Mr Hall on this conversation was 6 minutes which is a substantially greater period of time than needed for the conversation as recorded. Given that the Claimant accepted she made the comment about "the dogs home", had she stated that she knew the partners in Hunt & Wrigley were the Executors, she would, in the Court's judgment, have said so in evidence, to the Court.
- Mr Hall's evidence was that from the telephone conversation he had with the Claimant on the 22nd of August, and the meeting he had with her on the 23rd of August, he believed that the Claimant knew what Mrs Gill had done by the terms of her will and when he told the Claimant that she had not been provided for in Mrs Gill's will such did not come as a huge surprise to her. This evidence of Mr Hall was provided to the Court some 2 years after the event. His witness statement is dated the 9th of May 2008 and, neither in that witness statement nor at the trial of this action did Mr Hall identify any specific factor or factors upon which he relied for this evidence of the Claimant's knowledge of the contents of the will or of her lack of surprise when told by him that she had not been provided for in Mrs Gill's will. Different people react in different ways to information of the type imparted by Mr Hall to the Claimant. Mr Hall made no entry in his file note of the 23rd of August 2006 recording his beliefs in relation to the Claimant's knowledge or lack of surprise and, in this respect, the Court prefers the evidence of the Claimant to that of Mr Hall for it accords with that which she set down in her comments on Mrs Gill's will in the document dated the 29th of September 2006 at page 4 thereof. It is to be noted that this document was written less than 6 weeks after Mrs Gill's death.
- The Court is satisfied the Claimant did not know the contents of Mrs Gill's will until after her death except for that which she had been told by Mrs Gill namely that she and Mr Gill had left everything to each other.
The Psychiatric Evidence
Professor Robert Howard
- Professor Robert Howard, Professor of Old Age Psychiatry at the Institute of Psychiatry, and Consultant Old Age Psychiatrist at the Maudsley Hospital, London, provided a report to the Court dated the 9 of June 2008 on behalf of the Claimant which addressed the following issues:-
1. Was Mrs Gill suffering from a mental disorder in April 1993 and if so which disorder?;
2. What were the main manifestations of that disorder?;
3. Did the disorder affect Mrs Gill's testamentary capacity in April 1993?;
4. Given Mrs Gill's disorder, would she have been able to give instructions for the preparation of the will to a solicitor either by telephoning him or attending a meeting with him to give instructions?
Mrs Gill signed the will at Hunt & Wrigley's offices in the presence of two secretaries of that firm:-
5. Would Mrs Gill have been willing to see that solicitor without Mr Gill being present?;
6. Would Mrs Gill's disorder have affected her ability to concentrate upon and digest what was being said to her by a solicitor at that meeting?;
7. Would Mrs Gill's disorder have inhibited her ability to express a wish to make a will in terms which differ from the will being read over to her at that meeting?
- At paragraph 5 of his report, Professor Howard expressed the opinion that Mrs Gill suffered from agoraphobia with panic disorder which was of a serious degree and markedly limited her ability to function outside a set of a highly specific situations within which she would have felt safe and comfortable and could avoid severe anxiety symptoms and episodes of panic. 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 depence upon Mr Gill, would have made it very difficult for her to express a wish to make a will that was different from one that he wished her to make.
- It is Professor Howard's opinion that Mrs Gill was suffering from a mental disorder in April 1993 namely agoraphobia which is a disabling anxiety disorder and that she had suffered from such for much of her adult life. Professor Howard considered that whilst the severity of this disorder may have shown minor fluctuations over time he would expect that the symptoms and associated consequent behaviours would have been more or less constantly present.
- In relation to what were the main manifestations of this disorder, Professor Howard quoted from ICD-10 definition of agoraphobia and that definition is set out at paragraph 53 of his report in which he emphasised that all of the following should be fulfilled for a definite diagnosis:-
1. The psychological or autonomatic symptoms must be primarily manifestations of anxiety and not secondary to other symptoms such as dilusions or obsessional thoughts;
2. The anxiety must be restricted to (or occur mainly in) at least two of the following situations: crowds, public places, travelling away from home and travelling alone;
3. Avoidance of the phobic situation must be, or have been, a prominent feature.
- The diagnostic guidelines also state that in cases where the distinction between social phobia and the agoraphobia is difficult, precedence should be given to agoraphobia.
- In Professor Howard's opinion Mrs Gill's mental health difficulties would not have affected her testamentary capacity. She would have understood the nature and effect of making a will, she would have been able to recall the extent of the property of which she was disposing and she would have been able to recall and consider the nature and extent of the claims of those who might reasonably be expected to benefit from her testamentary bounty.
- Professor Howard considered it extremely unlikely that Mrs Gill would have telephoned a solicitor to give him instructions in relation to her will unless it was someone extremely well known to her. The fear which she had of leaving the house and meeting unfamiliar people would have meant that she would have wanted to avoid attending a meeting with a solicitor to give instructions if possible. Professor Howard did not consider that it would be likely she would be able to travel to the solicitors office and to see the solicitor on her own. If Mr Gill had taken her to the solicitor then his opinion was that Mrs Gill would have wanted Mr Gill to have stayed with her and would not have wanted to see the solicitor on her own. If Mr and Mrs Gill had met jointly with the solicitor then Professor Howard would anticipate that Mrs Gill would have wanted to let her husband do all of the talking. Even with her husband present she would have found this an uncomfortable experience.
- It would have been extremely distressful for Mrs Gill to have had to see a solicitor without her husband being present and she would have done what she could to avoid that situation.
- Even if Mr Gill had been present at the meeting with the solicitor, 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. The best analogy which Professor Howard could give would be that of the thought processes of an otherwise healthy individual who, while visiting an office heard the fire alarm sound and could smell smoke and who's overwhelming impulse would be to try to leave the situation. Mrs Gill's thoughts would have been dominated by an impulse to escape back to the safety of home and 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 during the meeting. Because of her disorder, 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 and to a situation where she felt safe and would no longer be exposed to the elements of her agoraphobia that would precipitate her anxiety symptoms. 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 because this would have limited her exposure to the stressful trigger of talking with a stranger in an unfamiliar situation. Because of her agoraphobia and the role that Mr Gill played in protecting her from the precipitants of her anxiety symptoms, her relationship with her husband was one of unusual dependency. Mr Gill accommodated his wife's psychiatric difficulties to an extraordinary degree. Her appreciation of this and of the consequences of his potentially withdrawing his support and accommodation of her would have made it very difficult for Mrs Gill to have expressed a wish to make a will that differed from one that her husband wanted her to agree to.
Dr Claire Royston
- Dr Claire Royston, Fellow of the Royal College of Psychiatrists and Specialist in Old Age Psychiatry provided a report for the Court dated the 24th of June 2008 on behalf of the Third Defendant.
- In her report, Dr Royston also referred to the ICD-10 definition of agoraphobia. In paragraph 2.2 of her report Dr Royston addressed the physical, psychological and behavioural symptoms of agoraphobia. She opined that the physical symptoms might include, rapid heart beat, rapid breathing, feeling hot and sweaty, nausea, trembling, dizziness, ringing in the ears and feeling faint. At paragraphs 2.2.2 and 2.2.3, Dr Royston expressed her opinion as to the psychological and behavioural symptoms of agoraphobia.
- At paragraph 4.2 of the report, Dr Royston expressed her opinion regarding Mrs Gill's psychiatric status. In formulating her opinion, as to whether it is appropriate to retrospect and make a diagnosis of a mental disorder, Dr Royston placed an emphasis on the information contained within the medical documentation she had reviewed. Mrs Gill consulted her General Practitioner over a period of years and the detailed records of her General Practitioner's surgery showed that she attended thereat 45 times between 1999 and 2006 with the majority of the consultations with Dr Walters. At no point during those consultations did Mrs Gill complain of any anxiety type symptoms such as rapid heart beat, rapid breathing, feeling hot and sweaty, nausea etc. Further, there were no complaints recorded in the General Practitioner's notes of Mrs Gill complaining of any restrictions in her ability to undertake what social activities she wished or of any of the other behavioural or psychological symptoms that characterise agoraphobia.
- Dr Royston not only considered the detailed notes recorded in the GPs records relating to Mrs Gill but also referred to the various letters passing between Dr Walters and hospital clinicians. Dr Royston identified that none of the correspondence referred to any of the hospital clinicians noting anxiety or panic symptoms on the part of Mrs Gill even though one would expect hospital consultations to be difficult and potentially anxiety provoking experiences.
- Dr Royston placed primary reliance upon the General Practitioner's medical notes as well as the correspondence with the hospital clinicians but she also considered the witness statements of witnesses of fact in this case which led her to conclude that Mrs Gill was best described as having rather eccentric behaviour preferring or choosing to behave in a very reclusive and isolative manner. Dr Royston expressed the view that Mrs Gill led an eccentric and unusual life. Her family largely acceded to her needs and supported her eccentricities. But in Dr Royston's opinion there was not sufficient evidence of psychiatric symptoms to support a formal diagnosis of agoraphobia with panic disorder as proposed by Professor Howard. She concluded that in her opinion there were no grounds to make a retrospective psychiatric diagnosis of a mental disorder, the experience and symptoms of which compromised Mrs Gill's ability to know and approve the contents of the will.
- Professor Howard and Dr Royston having read their respective reports discussed the case and those reports by telephone on 1st July 2008 and produced a joint expert statement of that date which identifies the areas on which they agreed and the areas on which they disagreed. The experts agreed that Mrs Gill did not suffer from a major psychosis or mood disorder, that she was of normal intelligence and did not have a dementia at the time she made her will in April 1993. They agreed that Mrs Gill had capacity to make the will. They also agreed that it was likely that Mrs Gill would have conformed with the wishes of her husband when making her will and that this would have been consistent with the usual pattern of their lives together.
- Dr Royston and Professor Howard disagreed over the issue of diagnosis. Professor Howard believed that Mrs Gill would have met diagnostic criteria for agoraphobia with panic disorder whilst Dr Royston did not believe that Mrs Gill would have met criteria for any formal psychiatric disorder but should most usefully be viewed as having been an eccentric woman.
- They disagreed over the capacity that Mrs Gill would have had to express her views and opinions and act on these if they differed from those of people around her. Dr Royston believed that Mrs Gill was able to do this - even within stressful situations such as her Doctor's surgery or a hospital appointment. Professor Howard believed that Mrs Gill would have avoided expressing such views or acting on them if this was likely to prolong exposure to stressful social situations or risked alienating somebody who she would have regarded as a vital support such as her husband or daughter.
- Both Professor Howard and Dr Royston were the subject of lengthy and detailed examinations in chief and cross examinations which totalled 5 days in duration.
- After 3 days of evidence, the case was adjourned and Dr Royston and Professor Howard produced a further joint report, dated the 1st of December 2008. They had met by telephone conversations on the 19th of November and the 1st of December 2008 to discuss the content of the Court transcripts of Dr Royston's re-examination which took place on the 13th of November 2008 and a supplemental report was prepared by Professor Howard on the 16 of November 2008.
- The matters on which they were agreed are as follows;-
1. The definitions of working memory and episodic memory and the descriptions of how they are assessed set out in Psychiatry in the Elderly;
2. The successful operation of working memory requires more concentration than episodic memory. They agreed that this was expressed usefully in paragraph 18 of Professor Howard's supplemental report "— the stage of information reception and processing that is most dependent upon maintained attention (or "concentration"), and, hence, is most vulnerable to the effects of anxiety or any other mental activity that potentially competes for finite attentional resources, is working memory and not the latest stage of information transfer into episodic memory";
3. The cognitive process who's operation is most significantly negatively affected by anxiety is working memory;
4. Increasing levels of anxiety have an increasingly negative effect upon the ability of an individual to maintain attention. Severe anxiety has a devastating impact upon the ability to maintain attentional function over a period of several seconds or minutes;
5. Information can only enter episodic memory having initially passed through working memory but not every item of information that enters working memory enters episodic memory;
6. Mrs Gill does not suffer from a disorder of episodic memory function and if the knowledge of the legacy to the RSPCA had been incorporated and processed in her working memory it is most likely that it would have been transferred to her episodic memory that she would have been able to recall this 6 years later.
- Dr Royston and Professor Howard disagreed about:-
1. What can be inferred from the fact that Mrs Gill was able to recall in 1999 that she had made a will containing a gift in favour of her husband. Professor Howard believes that this has no significance in establishing that a further important and potentially highly memorable detail of the will; specifically the legacy to the RSPCA; might have entered her working memory in 1993. Dr Royston believes that it is implausible that Mrs Gill would have been able to recall that she had made a will in favour of her husband without having taken other facts about the will, such as the legacy to the RSPCA, into her working memory;
2. The degree of anxiety that Mrs Gill would have experienced in the offices of the solicitor where the will was read out to her. Professor Howard believes that the anxiety would have been of a degree and nature sufficient to compromise Mrs Gill's ability to concentrate on the details of the will. Dr Royston does not believe that Mrs Gill would have experienced an unusual degree of anxiety in the solicitor's office and consequently considers that there will be no reason to suppose that Mrs Gill would have had any difficulty in concentrating upon the contents of the will when they were read to her.
- It became quite clear in the course of the cross examination of Professor Howard that he had relied upon the contents of the witness statements identified by him in his report and accepted the contents thereof at their face value. He did not have the benefit of interviews with those witnesses for the purpose of making a judgment as to the strength of their evidence or the weight to be attached thereto for the purpose of enabling him to form a view as to the characteristics of the relevant witness and the impact of such upon the strength of their evidence and the weight to be attached thereto. He had paid particular attention to the evidence of the Claimant set out in her witness statement and he accepted that if the Court concluded that Mrs Gill's characteristics and the degree of those characteristics did not accord with the characteristics and the degree thereof which he had identified from his reading of the witness statements, such would impact upon his view of Mrs Gill's mental state. If, for example, the Claimant had exaggerated Mrs Gill's difficulties to the extent that Mrs Gill was in fact shy and shunned social contact but was not fearful of contact with third parties, that would have a material impact upon his opinion as to Mrs Gill's mental state.
- Upon consideration of the evidence relating to Mrs Gill's history including the war years, her marriage, the taxi business and her actual driving of a taxi, the operation of the small holding and her conduct in the 1960s to the 1990s as disclosed in the letters written to the Claimant together with the description of Mrs Gill's personality provided by the Claimant, Professor Howard suggested that agoraphobia was a condition that can wax and wane to a certain extent. He maintained the opinion expressed in paragraph 50 of his report where he says that Mrs Gill suffered from a serious and disabling anxiety disorder for much of her adult life but he revised his opinion set forth in that report by recognising that in Mrs Gill's case the severity of the disability resulting from the agoraphobic disorder was not constant. Professor Howard accepted that the symptoms, and associated behaviours of agoraphobia were not constantly present in Mrs Gill over the whole of her adult life. Mrs Gill was able to see, talk to and even chastise people within the vicinity of her home, because that was her comfort zone and she was able to remonstrate with people outside that comfort zone when something sudden and alarming happened. This was because her response to such would be an autonomic one. Examples of this are where she was sat in the motor car drinking coffee when another car struck the rear thereof and the postman driving through her washing line and blackening the washing she had done. The anxiety disorder suffered by Mrs Gill became clearly recognisable as agoraphobia in the late 1970s and thereafter.
- Mrs Gill's altercations with poachers on the Farm and her confrontation in defence of Mr Gill with those who threatened him when they were both away from the farmhouse were considered by Professor Howard who opined that these were extra-ordinary episodes from which it was dangerous to draw any conclusions about Mrs Gill's general functioning.
- Professor Howard was cross examined in relation to incidents and contacts with people such as a solicitor and doctors in the 1980s and the 1990s. He gave evidence that Mrs Gill would have been able to speak to a solicitor, to respond to the solicitor in the same way in which she would have been able to respond to a doctor. However, in his opinion, Mrs Gill would have found the experience very difficult and would have been very anxious and might not have been able to take much in about the conversation. At the meeting with Mr Argyle for the purposes of signing the will, Mrs Gill would have found that a very anxiety generating encounter which would have precipitated her anxiety symptoms and, in that state, she would have found it difficult to follow what was going on and her memory of the meeting would not have been a good one. He made the point that Mrs Gill was greatly dependent upon Mr Gill for his support and assistance particularly in relation to Mrs Gill avoiding anxiety precipitating situations. Mrs Gill would be fully aware of her dependency upon Mr Gill and she would have to be very motivated indeed to go against her husband's wishes because of the threat of Mr Gill withdrawing support for her within and about her phobias.
- For a diagnosis of agoraphobia, the psychological or autonomic symptoms must be primarily manifestations of anxiety and Professor Howard identified these manifestations as being Mrs Gill's dislike of leaving the house, of travelling alone and of being left alone. He gave evidence that she had an irrational fear of these activities. The evidence relied upon by Professor Howard for the irrationality of the fear Mrs Gill had of leaving her home was Mrs Gill's inability to attend the Claimant's degree ceremonies, her reluctance to attend her only daughter's wedding unless only close members of her family were present and her reluctance to attend Mr GilTs funeral if persons other than the Claimant, Dr Baczkowski and Christopher were present.
- Professor Howard agreed with Dr Royston that the psychological symptoms of agoraphobia are feelings or thoughts that are often, although not always, related to the physical symptoms of rapid heart beat, rapid breathing, high temperature and sweating, nausea, trembling, dizziness and ringing in the ears together with feeling faint. He also agreed with the examples of the psychological symptoms of agoraphobia identified by Dr Royston such as a feeling of low esteem, a feeling of an inability to function or even survive without the help of others, a fear of being left alone in the house, and a general feeling of anxiety or dread and depression.
- Professor Howard diagnosed Mrs Gill as suffering from panic disorder as well as agoraphobia. For a diagnosis of panic disorder there needed to be evidence of Mrs Gill having panic attacks with very extreme manifestation of the physical symptoms of anxiety. The condition involves a feeling of dread and impending horror that something terrible is going to happen, such is accompanied by hyperventilation, racing pulse and other physical conditions resulting from the hyperventilation. The evidence relied upon by Professor Howard for his diagnosis of panic disorder is confined to Mr Armstrong's account of that which he described as Mrs Gill's panic attack. This was the only occasion of which there was any evidence of anything approaching a panic attack. It is to be noted that it relates to an incident within Mrs Gill's comfort zone and there is no evidence of any incident of a similar nature occurring when Mrs Gill was outside her comfort zone.
- When Professor Howard was questioned by Mrs Talbot-Rice in relation to the quality of the evidence of the witnesses of fact he had relied on with illustrations by her of the way in which the evidence of some of those witnesses had changed, been diluted or simply fallen away in cross examination, Professor Howard made the point that the bulk of the information he had relied upon had been contained in the witness statements of the Claimant and Dr Baczkowski because many of the other witnesses did not have much contact with Mrs Gill or in some cases no contact at all.
- In relation to the execution by Mrs Gill of her will dated the 27th of April 1993, Professor Howard's evidence in cross examination was that the meeting with Mr Argyle at the offices of Hunt & Wrigley would have precipitated Mrs Gill's anxiety. She would have gone out of her way very dramatically to avoid seeing Mr Argyle on her own so that having Mr Gill with her would have been a kind of support to reduce as much as possible the anxiety. The experience of seeing Mr Argyle would have produced in Mrs Gill anxiety of such degree that she would have had an overwhelming impulse to escape it. Mrs Gill would have found the experience of attending upon Mr Argyle alone practically intolerable and it would have placed her on the brink of having a panic attack. The presence of Mr Gill would have reduced the anxiety experienced by Mrs Gill who would have understood:-
1. She was making a will;
2. The will was directions as to the disposition of her assets on her death and Professor Howard expressed the opinion that she would have been able to recall the extent of the property that she had to deal with by her will and she would have been able to recall and weigh up the nature and extent of the claims of the Claimant upon her and her bounty. However, Mrs Gill's anxiety would probably have affected her ability to concentrate, to take in and commit to memory material that was presented to her during the meeting with Mr Argyle. If the whole will had simply been read out to her aloud without any particular emphasis on any part she probably would not have followed, understood or digested what she was doing. If Mrs Gill had received a copy of the will at her home and read it within her comfort zone she would have been able to understand the terms and effect of the will.
- Attendances by Mrs Gill upon Dr Walters or upon hospital doctors would not provoke the feelings in her of anxiety equal in degree to that which she would have experienced when she attended upon Mr Argyle because doctors use simple language when talking to patients. 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. This was very different from Mr Argyle simply reading out aloud a 1 A4 page of text which contains legal language.
- If Mr Argyle read through to Mr and Mrs Gill the various clauses of the will and explained the effect of each of those clauses, answering any queries raised in relation thereto, and, if after so doing, Mr Argyle asked Mrs Gill if she understood the position and she confirmed that she did, then, according to Professor Howard, Mrs Gill would have understood the meaning and effect of the will.
- In relation to clause 5 of the will i.e. the declaration of non-provision for the Claimant, if Mr Argyle had read the clause to Mrs Gill and explained its meaning and effect to her, she would have understood that clause and its consequences.
- After Mrs Gill's attendance at Mr Argyle's office, and her execution of the will, she would have remembered the event going into his office and executing the will. When she got within her comfort zone upon returning home she would have been able to tell the Claimant that she had been taken to a solicitor's office and signed a will. Further, and of importance, if she was not happy about what had happened, Mrs Gill would have had the ability to tell the Claimant of this.
- In 1999, after the death of Mr Gill, Mrs Gill was asked by the Claimant whether she had made a will, and about the invoice from Hunt & Wrigley addressed to both her and Mr Gill. Mrs Gill's response was that both she and Mr Gill had made wills but she did not know where they were. Professor Howard confirmed that there would have been nothing at this stage and between this stage and Mrs Gill's own death, in August 2006, which would have inhibited her from telling the Claimant what she wanted to happen on her death. Further, if Mrs Gill had been unhappy with the will she had made on the 27th April 1993, or with what had happened when she made that will, she had the ability and capability to tell the Claimant that she wanted to make another will.
- Professor Howard considered that because of Mrs Gill's dependency upon Mr Gill he would have exercised a degree of power over her and upon his death, because Mrs Gill became dependent upon the Claimant, she would have been in a similar position to that of Mr Gill viz-a-viz Mrs Gill.
Dr Rovston
- Dr Royston was cross examined at length and in detail by Miss Angus and in many respects her expert evidence accorded with that of Professor Howard. To that extent there is no necessity for that evidence to be set out in this Judgment.
- Though Dr Royston agreed with Professor Howard that taking information from collateral informants is something Psychiatrists do all the time, she made the point that such is very different from taking information from witness statements. Dr Royston exercised great caution when doing so because, she said, she did not know whether what was said is true or false. Further, when she considers the witness statement of a daughter, in regard to her mother, Dr Royston does not take the statement of the daughter at face value because:-
1. Not all daughters are motivated for the best for their parent;
2. Witness statements have to be prepared by lawyers.
- Dr Royston told the Court that she looks at the information provided, she considers the various interpretations of the information and she determines which one is the correct one and the weight to be attached thereto. In this case Dr Royston had given more weight to the medical notes of Mrs Gill than the information set forth in the witness statements of the Claimant. Dr Royston looked at the range and spectrum of information available in this case and, having done so, has been unable to identify the positive information which enables a diagnosis of agoraphobia in the case of Mrs Gill. Mrs Gill had seen her General Practitioner on 45 occasions and specialist hospital clinicians in a wide range of departments on 7 separate occasions. Not one General Practitioner or hospital doctor remarked upon her showing a significant degree of anxiety or any of the manifestations of severe anxiety such as sweating, hotness, hyperventilation.
- Dr Royston's opinion was that if Mrs Gill had been suffering from agoraphobia, of a degree that prevented her remembering very basic facts about the making of her will, she would have expected to see such a degree of anxiety experienced by her at her consultations with her General Practitioner and the Specialist Hospital Clinicians including Consultants, that it would have been recognised by those Medical practitioners. Further, though it is said by Professor Howard that when Mrs Gill attended upon Mr Argyle, for the purpose of signing her will, she suffered such a degree of anxiety that she was not able to understand the terms and effects of the will, nevertheless, in the anxiety provoking situation of her attending hospital, for what Mrs Gill knew was going to be invasive, unpleasant and embarrassing procedures in front of other people, she was able, nevertheless, to listen to a hospital doctor explaining the procedure she was going to undergo in detail and she then signed the consent form in respect of such procedure.
- Dr Royston agreed that when individuals suffer from agoraphobia quite often the fear of leaving home and the fear of being left alone at home are combined and the person suffering from the condition becomes very dependent on the person or persons with whom they live for their support and assistance. She further agreed that people accommodate the person suffering from agoraphobia to support and re-assure them. An example of this is a person suffering from agoraphobia who cannot leave home alone but is able to leave it if accompanied by a family member and if he or she is accustomed to obtaining re-assurance from a particular family member that will make them highly dependent upon that person. Dr Royston agreed that symptoms of agoraphobia can include pulling down the window shutters or keeping the door of the house locked or not answering the door and that patients with agoraphobia sometimes regard their motor car as an extension of their home i.e. an extension of their comfort zone and may be able to leave their home by journeying in the motor car. Miss Angus put it to Dr Royston that it was available to Professor Howard to make a diagnosis of agoraphobia on the basis of behaviour alone because ICD-10 does not require all 3 types of symptoms to be apparent before a diagnosis of agoraphobia can be made. Dr Royston disagreed and said that all 3 types must be present irrespective of the extremity of a particular behavioural symptom though earlier in her evidence she had stated that 2 were sufficient. This was, she acknowledged, a difference of approach between herself and Professor Howard. Dr Royston agreed that if there was no information of a patient having been recognised by, or reported to, her GP as having the physical symptoms of agoraphobia, she would rely upon information provided by close family members of the patient. She would regard the patient's medical notes as the most important source of relevant information and the information from close members would be the second most important source. The parts of the relevant witness statements upon which Dr Royston relied for her report and which are set out in part in that report were taken by her at their face value including those of the Claimant's, In other words, she accepted as true that which was set out in the witness statements identified in her report as either of significance to her diagnosis or to the matters listed in the report as bullet points.
- Miss Angus put questions to Dr Royston by reference to the Claimant's evidence contained in her witness statements and the evidence which she had provided to the Court orally in the course of the trial. In particular her evidence in relation to Mrs Gill not attending her only daughter's degree ceremony despite travelling to it in the motor car was considered in some detail. Dr Royston conceded that when one looked at this particular incident, in the context of others which involved reluctance on the part of Mrs Gill to attend functions at which persons, other than close family members, might be in attendance, her decision not to get out of the car even though she travelled to the degree ceremony was likely to have resulted from an irrational motivational force which prevented her from getting out of it as opposed to her free choice not to do so. The circumstances of Mrs Gill attending the Claimant's wedding were considered; in particular the exclusion therefrom of members of Dr Baczkowski's family, Dr Royston confirmed that these circumstances and the Claimant's evidence in relation thereto were relevant to a potential psychiatric diagnosis and that Mrs Gill's attitude of non-attendance at the wedding, if other people outside the family were present, was motivated by something irrational and was not a free choice on her part. Further, Mrs Gill's refusal to get out of the motor car which was parked in the car park of Friarage hospital and her refusal to do so in order to see her husband when he was admitted on the 9th of February 1987 for emergency surgery for an aortic aneurysm, despite the attempts of the Claimant, Dr Baczkowski and members of the nursing staff of the hospital to persuade her to get out of the car, was categorised by Dr Royston as being the product of an irrational reason on the part of Mrs Gill. Dr Royston also agreed that Mrs Gill's refusal to talk to the vicar who was to conduct Mr Gill's funeral and her refusal to attend that funeral, if people other than the Claimant, Dr Baczkowski and Christopher attended, was because of an irrational fear which she had and which prevented her from doing so.
- Miss Angus cross examined Dr Royston by reference to the witness statements of Dr Baczkowski, Mr Hansell, Mr Noble and Mr Armstrong. Miss Angus concentrated upon the relevance of parts of the evidence, provided by the Claimant and those other witnesses of fact, to a diagnosis of agoraphobia, the weight to be attached to the evidence and the reasons for certain of the parts of that evidence not being quoted in, or having been omitted from, Dr Royston's report. Dr Royston acknowledged that quite substantial parts of the statements of those witnesses were relevant to the issue of whether Mrs Gill suffered from agoraphobia, the severity of the anxiety experienced by Mrs Gill, the circumstances in which such anxiety was experienced and the weight to be attached to that evidence. She was also cross examined as to why she had not quoted or made reference to such evidence in her report. Dr Royston expressed her view as to the relevance of the individual pieces of evidence to the diagnosis of agoraphobia, the severity of the anxiety experienced by Mrs Gill and the circumstances in which that anxiety was experienced. Her explanation for the non quotation of, or reference to, those parts of the witness' statements in her report was that she had read all this evidence and had taken it into consideration when preparing her report and reaching the opinions which she had expressed. She had not quoted from or referred to this evidence in the report because it would have resulted in a very lengthy report and she had a relatively short time span for the purpose of preparing that report which had been taken up by her in reading all the evidence, analysing it and preparing her report for the trial.
- Mr Armstrong's description of the condition of Mrs Gill when he saw her shortly after she had been visited by the potential deer stalker was put to Dr Royston. She disagreed with Professor Howard's evidence that Mrs Gill's reaction to the potential deer hunter approaching her on the Farm was illustrative of her having suffered a panic attack because panic attacks are much more severe in nature than that which had been described by Mr Armstrong. Dr Royston declined to agree with Miss Angus that Mrs Gill's reaction was an extreme reaction to a stranger attending on the Farm. Dr Royston described it as merely a shy lady who was surprised by a requirement to interact with a stranger on the Farm and got herself into a state.
- Miss Angus then cross examined Dr Royston by reference to the witness statements of Mr Adamson, Mr Wardman, Mr Derek Kitching, Mr Swales, Mr Edmonds, Mr Mason, Mr Robson, Mr Pennock and Mr Howard Kitching along similar lines to her cross examination of Dr Royston in relation to the other witnesses of fact identified earlier. Dr Royston's evidence in response to the questions put by Miss Angus were similar in nature and extent to that given in reply to the questions asked earlier of her in relation to the other witnesses of fact.
- On being reminded of the circumstances of and surrounding Mrs Gill's attendance at Christopher's Christmas plays, the dentist and of her inability to get out of the motor car when she attended at the Friarage hospital to visit Mr Gill on the 9th of February 1987, Dr Royston accepted that:-
1. It would have preferable for Dr Royston to have stated in her report that Mrs Gill did not attend as opposed to the phrase which she employed in her report of - "chose" not to attend;
2. It was more likely than not that the reason for Mrs Gill's conduct on these occasions and her not getting out of the motor car was an irrational one.
- Dr Royston was taken through individual entries in the medical notes of Mrs Gill commencing with an entry for the 19 of November 1999 together with correspondence with the Clinicians at the Friarage hospital and parts of the evidence of Dr Walters given in the course of the trial. Dr Royston agreed that given Mrs Gill was an extremely reluctant patient and a reluctant historian she was like many old people in that she was unlikely to:-
1. Want to go to the doctors;
2. Volunteer an accurate history of her symptoms.
She further accepted that the non complaints of Mrs Gill's husband and daughter about Mrs Gill's condition and their failure to seek help from the medical practitioners was of relevance to the levels of tolerance of these family members. This evidence related to the family members, and their degree of willingness to co-operate with Mrs Gill, the cultural environment in which they found themselves and their personal attitude to mental heath. She also accepted that General Practitioners rarely spot the relevant signs of mental illness; in particular, dementia and that when Mrs Gill attended upon her General Practitioner he was focusing upon an acute serious medical problem that caused her to attend the surgery rather than looking for extra difficulties to investigate.
- When questioned in relation to Mrs Gill's hospital records which had not been available to Dr Royston at the time of preparing her report, she throughout maintained her position that Mrs Gill did not suffer from agoraphobia.
- In her report at page 142, Dr Royston expressed the opinion that it was likely that Mrs Gill would have deferred to Mr Gill in the matter of drawing up a will. In their joint report, both Professor Howard and Dr Royston expressed the view that it was likely that Mrs Gill would have conformed to the wishes of her husband when making her will and this would have been consistent with the usual pattern of their lives together.
- Dr Royston confirmed that Mrs Gill's relationship with Mr Gill was one of unusual dependency. Mr Gill had a strong personality and a strong temper and the evidence of Willie Gill suggested Mr Gill was a bully. Dr Royston opined that Mrs Gill was shy, timid and highly dependent upon Mr Gill who was domineering. She would do as she was told by Mr Gill generally and she would do as she was told by him in relation to her will.
- On the hypothesis that Mrs Gill was suffering from agoraphobia as described by Professor Howard, Dr Royston agreed that it is unlikely Mrs Gill would choose to go to Hunt & Wrigley's offices. It would take a very strong motivation to make her do so. The likely source of that motivation would be Mr Gill requiring Mrs Gill to comply with his wishes. Travelling to Hunt & Wrigley's offices would make Mrs Gill very anxious and it is extremely unlikely she would agree to see Mr Argyle on her own. If she made it into Mr Argyle's office, Mrs Gill would want the meeting to end as soon as possible so she could return to a safe place which would be her car or home. Dr Royston fully accepted that it is unlikely that Mrs Gill would have volunteered information to Mr Argyle and it is unlikely that she would have provided information unless probed for that information. Thoughts of escape from the room would dominate her thought process and to some degree affect her ability to concentrate and to take in information that was being provided to her at the meeting. The degree to which he would do so would depend upon the severity of the disorder, upon the degree of complexity of the information being imparted to her and the way in which it was imparted to her. If the will was read out to her by Mr Argyle there was a risk she might not have taken in all the information in the will and the degree of that risk would depend upon the severity of the disorder from which Mrs Gill suffered. Open questions would need to be asked of Mrs Gill in order to be satisfied that she understood what was in the will. Reading the will from top to bottom and asking the question of Mrs Gill - "are you happy with that" would not be sufficient to be satisfied that she had understood what was said. Dr Royston further agreed that it is unlikely that Mrs Gill would have voiced any disagreement with Mr Gill at Hunt & Wrigley's office even if Mrs Gill did not agree with him.
- Dr Royston was re-examined by Mrs Talbot-Rice and I have given careful consideration to her evidence given in the course thereof. Her evidence addresses the severity of physical symptoms which Mrs Gill would have exhibited at the meeting with Mr Argyle had Mrs Gill suffered from agoraphobia of the severity required for an inability on her part to take in what Mr Argyle said to her. On a scale of 0 - 1, Dr Royston put the severity of the physical symptoms at 0.7. Dr Royston opined that she expected Mr Argyle would have noticed that Mrs Gill was hot, flustered, sweaty, pale, breathing quickly.
- In response to questions from the bench, Dr Royston gave evidence that though Mrs Gill was capable of voicing to Mr Gill her opinions, she would comply with Mr Gill's wishes in a particular situation if he took a stance which differed from her own and was one which he adhered to, a definite stance. If Mrs Gill felt strongly about something where her opinion did not match that of her husband's she would not have voiced her disagreement with her husband. However, Mrs Gill was a lady who knew her own mind and would go about getting her way by going to places and to others to sort it out. If she made a decision in accordance with the wishes of Mr Gill, with which she did not agree, she would not have argued with Mr Gill but she would have gone to somebody else in order to undo the decision. If Mrs Gill had been with her daughter, in the absence of her husband, it would have been mentioned by her to the Claimant. After Mr Gill's death, it would have been easier for Mrs Gill to raise and to discuss the matter with the Claimant because no danger to Mrs Gill's position would then have been posed thereby.
- Mrs Talbot-Rice's re-examination introduced the concepts of working memory and episodic memory. Dr Royston gave evidence as to each and the degree of concentration required for each. She expressed the opinion that if 6 years after she had made her will, Mrs Gill remembered that she had made the will and by that will she left everything to her husband, such gave an insight into her concentration level when she attended upon Mr Argyle for the making of her will. Those basic facts of that which she did at the meeting had been transferred from her working memory into her episodic memory and given the length and the lack of complexity of the will which she made it is likely she would have remembered the provision for the Third Defendant on her death. It was also likely that on the 27 April 1993 she would have taken into her working memory the provision for the Third Defendant.
- This course of re-examination adopted by Mrs Talbot-Rice led to the joint report of Professor Howard and Dr Royston dated 1st of December 2008 and a further hearing in February 2009 at which both Professor Howard and Dr Royston gave further evidence for the purposes of clarifying the joint report.
- Professor Howard confirmed that on a balance of probabilities, at the meeting with Mr Argyle in Hunt & Wrigley's offices, Mrs Gill would have known and understood she was making a will and that by her will she was leaving all her property to Mr Gill. This was so if nothing had been said to her about the making of the will and the provision for her husband prior to entering Hunt & Wrigley's offices. He considered, however, that on a balance of probabilities Mrs GilPs attention at the meeting with Mr Argyle would not have been sufficient to enable her to take in that, by the terms of her will, if Mr Gill died before she did, she was leaving everything to the Third Defendant. This was because of the time which would have elapsed over the period of Mr Argyle reading the will out to her and, also, the unusual aspect of the will which was the provision for the Third Defendant and the particular wording of that provision.
- His evidence was that if the Court decides that Mrs Gill was suffering from agoraphobia then in the situation in Mr Argyle's office, Mrs Gill would have been experiencing a very significant level of anxiety. It would be the kind of level of anxiety experienced by people who are in a room when the fire alarm goes off, can smell smoke and have an overwhelming urge to get out of the building. On a scale of 1 - 10 where 10 is the most severe, if Mrs Gill had been alone in Mr Argyle's office, that would have measured 10 as an anxiety stimulant. If, however, Mr Gill had been with Mrs Gill at the time of Mr Argyle's reading of the will, it would have been 8 on the scale but even this degree of anxiety would be so severe that Mrs Gill would be so pre-occupied with thoughts of having to escape the situation that though she might well have understood she was making a will and even understood that by the will she was leaving everything to Mr Gill, she would not have been able to maintain sufficient concentration to have understood that if Mr Gill died before she died then she would be leaving everything to the Third Defendant.
- Dr Royston confirmed that she disagreed with Professor Howard's diagnosis of agoraphobia and she also said that she disagreed with the degree of anxiety experienced by Mrs Gill even if she did suffer from agoraphobia. Dr Royston confirmed that on the scale of 0 - 10 where 10 is the most severe anxiety, 7 -8 and upwards constitutes severe anxiety. She confirmed that if a person suffering from agoraphobia was taken out of their comfort zone they would be significantly anxious as soon as they moved out of that zone.
- Miss Angus asked Dr Royston to assume Mrs Gill suffered from agoraphobia. Dr Royston agreed to make that assumption and on that assumption she gave evidence that when Mrs Gill was at Hunt & Wrigley's offices with Mr Argyle, she would have the feelings of anxiety of severity similar to those experienced by someone in a room who hears the fire alarm go off and smells smoke and has an overwhelming urge to get out of the building. Mrs Gill would be well beyond the point at which the anxiety she was feeling was having a devastating effect on her sustained attention and Dr Royston further agreed that having to listen to a will being read out is a task which requires sustained attention. Consequently, if Mrs Gill was agoraphobic when she was present with Mr Argyle having the will read out to her, the anxiety she would experience would be so severe as to have a devastating impact on her ability to take in the will and understand it. Further, this would be consistent with Mrs Gill saying years later, after Mr Gill had died - "I think we might have made a will leaving it to each other".
- The presence of Mr Gill at the meeting with Mr Argyle would, according to Dr Royston, have helped Mrs Gill to cope with her anxiety; it would not have lessened the anxiety and it would not have necessarily increased her ability to maintain and sustain attention.
Psychiatric Findings
- In summary, Professor Howard's opinion is that Mrs Gill suffered from agoraphobia with panic disorder. Dr Royston's opinion is that she did not.
- Both Professor Howard and Dr Royston attempted to assist the Court to the best of their abilities and the task of the Court in deciding which evidence it prefers is not an easy one but, on balance, it is that of Professor Howard for the reasons which will become apparent.
- Professor Howard and Dr Royston quoted from and relied upon the LCD.-10 definition of agoraphobia and the Court, therefore, approaches the issue of whether Mrs Gill suffered from agoraphobia with that definition firmly in mind.
- Professor Howard identified the particular criteria which must be satisfied for a diagnosis of agoraphobia and with those criteria Dr Royston agreed. Initially, Dr Royston agreed that the anxiety must be restricted to (or occur mainly in) at least two of the situations of crowds, public places, travelling away from home and travelling alone. Later when giving evidence she stated that the anxiety must be restricted to at least three of the specific situations, Dr Royston changed her evidence in this respect but no explanation for that change was provided. This unexplained change of evidence is one reason why the Court prefers the evidence of Professor Howard, though it is but one.
- In the course of the trial many factual situations were canvassed in which it was contended by the Claimant that Mrs Gill exhibited primary manifestations of anxiety. These situations were considered and analysed in detail. There are, however, a number where, in the Court's Judgment, Mrs Gill exhibited primary manifestations of very severe anxiety; they are:
1. Her inability to get out of the car and walk into the building where her only daughter's degree ceremony was to take place. This occurred on two separate occasions and despite having got ready to attend the ceremonies and having travelled some 55 miles in the car to attend the same;
2. Her inability to attend her daughter's wedding if strangers, including members of Dr Baczckowski's family, attended the same;
3. Her inability to get out of the car parked in the hospital car park when Mr Gill was taken ill and was admitted for treatment for his aortic aneurysm;
4. Her inability to attend her husband's funeral if strangers were present despite a marriage of in excess of 50 years;
Dr Royston accepted that each of these incidents, when considered in the context of the others, involved an irrational motivational force which caused Mrs Gill to do as she did. It was not a free choice on her part.
- In the Court's judgment, the irrational motivational force was, in each case, an irrational fear on her part of travelling away from home, of public places and of crowds i.e. a number of strangers. The irrational fear which Mrs Gill experienced was capable of producing, and did produce, in her severe, and at times very severe, anxiety as exemplified by the incidents to which reference has already been made.
- Dr Royston confirmed that if Mrs Gill had suffered from agoraphobia she would have suffered significant anxiety as soon as she was taken out of her comfort zone. It was common ground that Mrs Gill's comfort zone was her house and the family cars, owned by her and Mr Gill, would be an extension of that comfort zone.
- Dr Royston identified the physical symptoms of, or associated with, agoraphobia and, in formulating her opinion that Mrs Gill did not suffer from that mental condition, she relied heavily upon the following:-
1. At no point in the course of the 45 consultations with her GP over the period 1999 to 2006 did Mrs Gill complain of, or exhibit to her GP any of these physical symptoms nor did she complain of any restrictions in her ability to undertake social activities which she wished to undertake or of any of the other behavioural or psychological symptoms that characterise agoraphobia;
2. Anxiety and panic symptoms on the part of Mrs Gill were not noted by the hospital clinicians even though she attended 7 different hospital departments for specialist advice and treatment;
3. There were no complaints by members of Mrs Gill's family of or about her irrational conduct in not being able to travel away from her home or to travel alone or to remain alone in her home etc. or of the other unusual conduct in her part.
However, Dr Royston accepted that quite often persons suffering from agoraphobia do not make complaint of these symptoms or of the restrictions upon their activities from which they suffer. This acceptance by Dr Royston does not sit easily with the first of the matters she placed reliance upon for her opinion.
- Further, Dr Walters considered that Mrs Gill was a reluctant historian.
- Professor Howard expressed the opinion that he was not surprised that medical professionals did not identify that Mrs Gill was suffering from a mental condition or symptoms of fear and severe anxiety because they would be focussing on the acute medical problem in hand e.g. a heart attack and possible abdominal carcinoma and Dr Walters agreed with such. Dr Royston, herself, acknowledged that GPs do not identify mental illness or symptoms of mental illnesses such as severe anxiety with any frequency and regularity. For these reasons the second matter upon which Dr Royston relied is not one which, in the Court's view, should attract the weight which she appears to have attached thereto.
- The lack of complaint by Mr Gill and the Claimant in relation to Mrs Gill's irrational conduct, the restrictions upon her activities and other somewhat unusual traits does not carry the weight which Dr Royston attaches thereto for the Court considers this says more about Mr Gill and the Claimant's tolerance of Mrs Gill's mental condition, the symptoms thereof experienced by her, and of their desire and ability to accommodate the same, than it does about Mrs Gill.
- Dr Royston also gave evidence that she did not agree with Professor Howard's opinion as to the degree of severity of the anxiety suffered by Mrs Gill, even if she did suffer from agoraphobia, but when she was cross examined by Miss Angus on the hypothesis that Mrs Gill was suffering from agoraphobia she gave evidence that when at Hunt & Wrigleys offices, with Mr Argyle, she would have the feelings of anxiety of severity similar to those experienced by someone in a room who hears the fire alarm go off, smells smoke and has an overwhelming urge to get out of the building. This degree of severity was put, by Professor Howard, at 8 on the scale of 0 - 10 where 10 is the most severe. Dr Royston accepted that Mrs Gill would have experienced anxiety so severe that it would have a devastating impact on her ability to take in the will and understand it.
- For all these reasons the Court prefers the evidence of Professor Howard.
- The Court is satisfied, on a balance of probabilities, that Mrs Gill suffered from agoraphobia. Professor Howard also diagnosed panic disorder and he relied upon the evidence of Mr Armstrong to some degree for such. The physical symptoms described by Mr Armstrong as being exhibited by Mrs Gill, after the attendance at her home of the potential deer stalker, are consistent with Professor Howard's diagnosis but, in any event, the Court is satisfied that:-
(1) Mrs Gill suffered from agoraphobia and;
(2) She experienced severe anxiety in consequence of the irrational phobias she had of travelling away from her home, remaining at home alone and attending public functions;
(3) Had Mrs Gill been taken by Mrs Gill to the offices of Hunt & Wrigley on the 27th April 1993, sat in Mr Argyle's office, had the will read out to her, been asked if she was happy with it and to sign the same, she would have experienced anxiety of such severity that her thoughts would have been dominated by an impulse to escape back to the safety
of her house and she could not have followed or understood what she was doing or known or understood the terms and effect of her will.
Want of Knowledge and Approval
- Before a will is entitled to probate, the Court must be satisfied that the testator knew and approved of the contents of the will at the time he signed it. This rule is evidential rather than substantive. In the ordinary case, proof of testamentary capacity and due execution of the will give rise to a prima facie presumption of knowledge and approval of the will, and its contents, by the testator. However, where the circumstances surrounding the preparation and/or execution of the will reasonably excite suspicion that the testator may not have known or may not have approved the contents of his will, the Court will require positive proof of the testator's knowledge and approval thereof. In these cases the burden of proof lies upon those propounding the will.
- The affirmative proof of knowledge and approval may take any form provided it is strong enough to satisfy the Court. The fact that the will was read over to the testator, or he read it to himself, is the most satisfactory evidence but there must be a proper and sufficient reading over or reading of the will. It must be proved that the testator completely understood, adopted and sanctioned the dispositions proposed by the will.
- Where the circumstances surrounding the preparation or execution of the will excite the vigilance of the Court, a very high degree of proof may be required.
- In an appropriate case, proof of the requisite knowledge and approval can and will require proof that the testator understood both the nature of the testamentary provision he was making and, also, its effect.
- In Fuller v Strum [2002] WTLR 199, it was said:-
"The question is not whether the Court approves of the circumstances in which the document was executed or its contents. The question is whether the Court is satisfied that the contents do truly represent the testator's testamentary intentions".
- In Tyrrell v Painton [1894] 1 P. 151,
the Court of Appeal held that the rule throwing upon the party propounding a will the burden of showing that it expresses the true will of the deceased is not confined to cases where the will is prepared by a person taking a benefit under it.
- In the Estate of Fuld [1968] 1 P 675,
Mr Justice Scarman said that the weight of the burden will vary with the weight of the suspicion to be dispelled; but in a matter as vital as this the law wears no cramping straight jacket. The Court's vigilance is called whenever circumstances reasonably excite suspicion.
- In Richards v Allan [2001] WTLR 1031,
Mr Anthony Mann QC, sitting as a Deputy Judge of the High Court, found that the will in that case was prepared under suspicious circumstances which included the fact that the idea of the will was conceived and implemented in a period after a significant hospitalisation where the physical and mental deterioration of the testatrix was becoming apparent and she suffered bouts of confusion. He was not satisfied that the real content and effect of the will were known to, or even considered by, the testatrix and he held that the reading of the will was not such as to indicate sufficiently clearly that she had the degree of appreciation of its contents and effect that was necessary for this requirement of validity.
- In Re Morris; Deceased [1971] 1 P 62,
Mr Justice Latey held that when it was proved that a will had been read over to, or by, a capable testator and he then executed it, prima facie the inference would be that the testator knew and approved the contents. BUT the Court is not precluded from considering all the evidence to arrive at the truth and this is so not only if fraud, but also if mistake, is suggested.
- Mr Justice Latey addressed what Counsel argued was a rule of universal application enunciated by Lord Penzance in the case of Guardhouse v Blackburn [1866] L.R. 1. P & D 109 and after considering that authority together with the cases of Atter v Atkinson [1869] 1 P & D 665 and Harter v Harter [1873] LR 3 P & D 11, expressed the opinion that there had been a progressive erosion of the rigidity of the "rule".
- The speeches in the case of Fulton v Andrews [1875] L.R. 7, H.L. 448, demonstrate that by "reading" or "reading over" there must be more than a mere literal, physical act of reading. The testator must be conscious of the terms of the will.
- This Court is satisfied, from a consideration of the cases, including the extracts of the Judgment of Mr Justice Sachs, in the case of Crerar v Crerar (unreported) quoted by Mr Lord Justice Latey in the case of Morris, that the Court has to consider all the relevant evidence available drawing such inferences it can from the totality of the material. It has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testator knew and approved the contents of the will. The fact that the testator read the document and the fact that he executed it must be given the full weight apposite in the circumstances but those facts are not conclusive in law nor do they raise any presumption.
- In Hoff v Atherton [2005] W.T.L.R. 99,
Lord Justice Chad wick said that where there is evidence of a failing mind — the Court will require more than proof that the testator knew the contents of the document which he signed — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the Court has doubts as to the testator's capacity to make a will. It is because the Court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the will BUT needs to be satisfied that he did in fact know and approve its contents.
- In this case the Claimant accepts that Mrs Gill had capacity to make the will which she executed on the 27th of April 1993. However, the Claimant contends that Mrs Gill was - "mentally frail" at the time she attended upon Mr Argyle on that date, that her mental frailty was of such severity that it would have affected her ability to comprehend and understand what was said to her by Mr Argyle, that she did not know and did not approve the contents of the will in the sense spoken of by their Lordship's House in Fulton v Andrews and by Lord Justice Chadwick in the case of Hoff v Atherton. Miss Angus submits that there is no rational principle why a distinction should be drawn between a testator who has a failing mind and one who suffers from a mental disorder which impairs his cognitive functions in the ways and to the degree which those of Mrs Gill were, according to the evidence of both Dr Royston and Professor Howard, if Mrs Gill suffered from agoraphobia.
- Miss Angus invited the Court's attention to the case of Buckingham v Dickinson & Others [2000] W.T.L.R. 1083. In reliance upon the Judgment of His Honour Judge Cooke, Miss Angus submitted that if the Court finds that Mrs Gill was agoraphobic, then, in order to be satisfied that she had knowledge and understanding of the contents of the will, it will be necessary for Mrs Gill to have been asked non-leading or open questions to ascertain such. Further, if the instructions for the will did not come from Mrs Gill, she needed to know what she was being asked to do and to agree with such. If the instructions for the will came from Mrs Gill, Mr Argyle and she needed to be in clear communication with one another, Mr Argyle was required to satisfy himself so that he was sure he was getting something in the way of a reasoned answer from Mrs Gill and not merely an apparent approval of somebody's proposition.
- The Court is satisfied that suspicious circumstances can, depending upon the specific facts, include mental frailty on the part of the testator, the question of by whom the instructions for the preparation for the will were provided together with the circumstances in which the instructions were given and the circumstances in which the will was executed.
- The Court is also satisfied that the actual dispositions made by the will may excite suspicion if they are surprising in the context of that which is known of the testator and in the context of the facts and circumstances of the case taken as a whole.
- In this case the Court's suspicion is aroused or excited by:-
1. The gift of the residue to the third Defendant in the light and context of Mrs Gill's view of and attitude towards the Third Defendant expressed and displayed during her life time;
2. The non-provision by the will of Mrs Gill for the Claimant given that the Claimant 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 the Claimant to Mrs Gill;
3. The fact that for 20 years or more prior to April 1993, the Claimant, and from 1987 onwards Dr Baczkowski, provided unpaid labour at Brookfields Farm and the Farm which labour was substantial;
4. The gratitude expressed by Mrs Gill for the Claimant's help and assistance;
5. The level of financial provision and the value of the gifts made to the Claimant by Mr and Mrs Gill;
6. The expenditure made by the Claimant and Dr Baczkowski on the purchase of White House Farm 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 the Claimant to the effect that she would inherit the Farm, which assurances she intended the Claimant to rely upon and which the Claimant 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 the Claimant;
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 the 27th of 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 and understand what was being said to her by Mr Argyle, If the meeting on the 27th of 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 third Defendant 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.
- The Court's suspicion that Mrs Gill may not have known and/or approved the contents of the will having been aroused or excited in the Court, the burden lies upon the Third Defendant to dispel that suspicion.
- The Third Defendant has dispelled that suspicion to the satisfaction of the Court for it has found:-
1. Both Mr and Mrs Gill attended a meeting with Mr Argyle at which they gave instructions for the making of their wills and informed Mr Argyle they were not making provision for the Claimant who was their only child. The reason they gave to Mr Argyle was that the Claimant had been adequately provided for financially whereupon he advised them as to the possibility of a claim under the Inheritance (Provision for Family and Dependents) Act 1975;
2. The drafts of the wills, subsequently executed by Mr and Mrs Gill, were received by them through the post and were read through by them;
3. Mr and Mrs Gill attended the second meeting with Mr Argyle at which he asked them if they had read their wills and he secured the confirmation of both Mr and Mrs Gill that they had and that they did not wish to make any amendments thereto. Mr Argyle then explained each clause of the wills and the effect thereof to Mr and Mrs Gill and asked if they had any queries in relation thereto. Any queries raised were answered by Mr Argyle and, at the conclusion of this exercise, he asked both Mr and Mrs Gill if they were happy with the terms of their wills. Only upon them confirming to him that they were did they proceed to signing the same.
- Mrs Gill read the draft of her will in her own home, within the zone of greatest comfort to her. She did not experience symptoms of anxiety consequent upon her condition of agoraphobia when so doing. It is probable the contents of the will were also discussed by her with Mr Gill. At that time there would not be any inhibition upon her ability to concentrate upon the terms of the will and absorb its meaning and effect. The will is not lengthy and it is not complex. It is just over one page in Length and simply provides for her estate to pass to Mr Gill on her death or, if Mr Gill dies before her, for it to pass to the Third Defendant. Clause 5 is not complex. Its meaning is clear and unambiguous. Further, when Mrs Gill met Mr Argyle for a second time, he went through each clause with a full explanation of its meaning and effect. Mr Argyle was not a complete stranger to Mrs Gill and 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 he provided her with. He sought confirmation that Mrs Gill was content with the terms and effect of her will and she confirmed that she was. Mr Argyle did not detect any signs of anxiety on the part of Mrs Gill.
- True it is that Mr Argyle did not go to the lengths of asking non-leading i.e. open questions of Mrs Gill for the purpose of determining whether she did have full knowledge and understanding of the contents of the will but the Court is satisfied that she did have full knowledge and understanding given her two attendances upon Mr Argyle, her consideration of the draft of her will in her own home and the procedure adopted by Mr Argyle at their second meeting.
- For these reasons the claim of want of knowledge and approval fails.
- Consideration will now be given to the claim of undue influence.
Undue Influence
- There is no presumption of undue influence in this case for it concerns the preparation and execution of Mrs Gill's will (Parfitt v Lawless [1872] LR 2 P & D 462).
- The Claimant bears the burden of proving, on a balance of probabilities, that the will was executed by Mrs Gill because of the undue influence exerted upon her.
- Proof of influence is not enough. It must be established that there was undue influence. Influence in the form of advice, suggestion or persuasion is not undue. The Claimant must establish coercion.
- In Hall v Hal] [1868] LR. 1, P & D 481, Sir J. P. Wilde defined undue influence as:-
"Pressure of whatever character — if so exercised as to overpower the volition without convincing the judgment of the testator".
- It is only when the will of the testator is coerced into doing that which he does not desire to do that it is undue influence (Sir James Hannen in Wingrove v Wingrove [1885] 11 P D 81).
- The coercion may be of different kinds. It may be actual confinement or violence or a person in the last days or hours of life may have become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of the illness, and pressing something upon him, may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything.
- In Edwards v Edwards [2007] EWHC 1119 (Ch)
Mr Justice Lewison said that given the seriousness of the allegations in that case, although the standard proof is a balance of probabilities, those allegations had to be proved by compelling evidence and, at paragraph 47 of the Judgment, he said:-
"It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden — that a Claimant bears in proving undue influence as vitiating a testamentary disposition".
- The findings of fact made by the Court in relation to the characters of and relationship between Mr and Mrs Gil] relevant to the issue of undue influence may be summarised as follows:-
1. Mrs Gill was a shy and timid person;
2. She suffered from agoraphobia with symptoms of severe anxiety;
3. She was very, and unusually, dependent upon Mr Gill and she was concerned not to lose his support;
4. Mrs Gill feared Mr Gill's loss of temper and outbursts of fury and the consequences of such to herself and to Mr Gill's health;
5. Mrs Gill deferred to Mr Gill where he maintained his stance on a particular subject;
6. Particularly after Mr Gill suffered his aortic aneurysm in 1987, Mrs Gill sought to avoid confrontation with Mr Gill by doing what Mr Gill wished;
7. Mr Gill was a domineering, determined, stubborn, self opinionated man who was prone to losing his temper quite easily resulting in outbursts of fury. He was a bully and could act disproportionately and at times perversely;
8. Mr Gill ran the Farm and the farming business in the way he wished without any reference to Mrs Gill and without her participation therein;
9. Mr and Mrs Gill's cultural backgrounds, and attitudes, were such that Mrs Gill, without more, would defer to Mr Gill, particularly in relation to business and financial matters.
- These factors need to be considered in the context of the loving and caring relationship between the Claimant and Mrs Gill, the assurances provided by Mrs Gill to the Claimant, express, implied, direct and indirect, to the effect that she would inherit the Farm on Mr and Mrs Gill's deaths, the appreciation by Mrs Gill of the Claimant's expectation that she would inherit the Farm, the fact of the reliance placed thereupon by the Claimant and the detriment suffered in, consequence thereof, which must have been appreciated by Mrs Gill.
- Additional factors of relevance are:-
1. The Claimant was Mrs Gill's only child and the will which Mrs Gill made entirely disinherited the Claimant;
2. The tradition in Yorkshire farming families of the Farm being left to the next generation of which Mrs Gill approved or, at least, recognised;
3. The existence of a grandson Christopher and his future;
4. Mrs Gill's avowed dislike of the Third Defendant.
- The Court is of the view that Mr Gill would probably have regarded the Farm as his to do with as he wished and Mrs Gill, if she differed in her view as to what should be done with it on her death, should defer to his wishes.
- The evidence in this case points to and establishes, on a balance of probabilities, that Mrs Gill's wish was for the Claimant to inherit the Farm on her death. Mr Gill, for reasons which remain a mystery, despite the assurances he gave to the Claimant, the overt and implied representations to third parties by statement and conduct that such was his intention, determined that nothing would be inherited by the Claimant but all would pass to the Third Defendant.
- The Court is satisfied that having made his decision, Mr Gill exerted pressure upon Mrs Gill to make the will which she did which was contrary to her wishes. The pressure was so exercised as to overpower her volition without convincing her judgment. It amounted to coercion. He directed his domineering and bombastic personality to Mrs Gill, utilising her anxiety and fear of his explosive character, and of the possibility of her losing his support upon which she was so dependent, to coerce her into making the will which she did. Mrs Gill's fear of the risk of Mr Gill losing his temper and of him withdrawing his crucial support for Mrs Gill, combined with her timid and shy personality, her traditional deferment to him and the severe anxiety consequent upon the agoraphobia from which she suffered, unduly influenced her to make the will that she did.
- The fact that Mrs Gill attended upon Mr Argyle, by whom the will was read out and explained to her, and before whom she executed her will, is of no consequence, for the evidence is that she would still have done as required by Mr Gill who, of course, was present with her at the time.
- It is submitted by the Third Defendant, inter alia, that if Mrs Gill executed her will in circumstances in which she felt constrained to do so and did so against her will, it is staggering, given the relationship she had with the Claimant, that she did not say something to her at the time the will making process was in hand or afterwards or particularly after Mr Gill's death. Mrs Talbot-Rice contends that it speaks powerfully against Mrs Gill having made a will, with which she was not happy that she did not:-
1. Tell her daughter that Mr Gill had made her sign a will with which she was not happy, whether before Mr Gill's death, or, more particularly afterwards. Instead of telling Dr Gill about the will (particularly when reminded of it by the Claimant probing into their testamentary affairs after the death of Mr Gill) Mrs Gill appears actively to have avoided telling the Claimant about it other than saying that they had left everything to the other. There was now nothing to fear, Mrs Gill was often with the Claimant at the Farm where she felt safe. There is no explanation for Mrs Gill not to have told the Claimant about the will she had made or;
2. Take any steps, whether between 1993 and 1999 when Mr Gill died, or after 1999, especially having been reminded of her will when the Claimant asked her about Mr Gill's will, to make a new will. It would have been the simplest task to have asked the Claimant to procure a will form from the post office and to have executed a new will at her home. The new will could have been attested by people whom she knew like Mr Armstrong and Mr Wardman.
- There is force in these submissions, made on behalf of the Third Defendant, and the Court has deliberated upon the same. Having done so, the Court has concluded that though these points are valid, and appear to negate coercion of Mrs Gill by Mr Gill, when the relevant evidence as a whole is considered, and the appropriate weight is attached to the constituent parts thereof, the high burden of proof has, in the judgment of this Court, been discharged by the Claimant.
- The will of Mrs Gill of the 27th of April 1993 having been procured by the undue influence of Mrs Gill by Mr Gill shall be set aside.
- The Court will now consider the claim of proprietary estoppel for if it is determined by a higher Court that the decision on the claim of undue influence is incorrect, the issue of proprietary estoppel will fall for determination.
Proprietary Estoppel
- In Taylors Fashions Limited v Liverpool Victoria Trustees Company Limited [1982] QB 133,
Mr Justice Oliver described the principle of proprietary estoppel as follows:-"If A under an expectation created or encouraged by B that A shall have a certain interest in land thereafter, on the faith of such expectation and with B's knowledge, and without objection by B, acts to his detriment in connection with such land, a Court of equity will compel B to give effect to such expectation".
- In Yeoman's Row Management Limited and Another v Cobbe [2008] UKHL 55,
the House of Lords, comprising Lords Hoffman, Scott, Walker, Brown and Mance approved of that description of the principle by Mr Justice Oliver.
- In the Judgment of this Court that description is to be preferred to the different formulation ofMr Edward NugeeQC in Re: Basham[1968] 1 WLR 1498 even though that formulation was approved by the Court of Appeal in Gillett v Holt [2001] l Ch 2010.
- In Taylors Fashions, Mr Justice Oliver made the following observation of importance; namely, that proprietary estoppel requires ""a very much broader" approach which is directed rather at ascertaining whether, in particular circumstances, it would be unconscionable for a party to be permitted to deny that which knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to enquire whether the circumstances can be fitted within the confines of some pre-conceived formula serving as a universal yardstick for every form of unconscionable behaviour".
- Of that observation of Mr Justice Oliver Lord Walker, in the case of Cobbe, said he certainly favoured a broad or unified approach to equitable estoppel but he cautioned that it was emphatically not a licence for abandoning careful analysis and subjective judicial opinion.
- In Thorner v Major and Others [2008] EWCA Civ 732
Lord Justice Lloyd, with whom Rimer and Ward L.JJ. agreed, considered the doctrine of proprietary estoppel in some detail and analysed many of the authorities relevant thereto, commencing with the decision of the House of Lords in Ramsden v Dyson [1865] LR 1 H.L. 129.
- The Learned Lord Justice in the course of his Judgment observed that where the question concerns the land owner's intentions, as regards the disposition of his property upon his death, a more subtle distinction needs to be drawn between, on the one hand, a statement as to the land owner's testamentary intentions and, on the other, a promise or assurance by him to the other party as to what he will do by his will. The latter could be intended to be relied upon by the other party and to influence his or her course of action. The former might be no more than a matter of information not intended to be relied on and which the other party could not reasonably be expected to take as so intended. Reliance for the accuracy of this observation was placed upon the cases of Crabb v Arun District Council [1976] Ch 179, J.T. Development Limited v Quinn [1991] 2.E.G.L.R. 257 and Sidney Bolsom Investment Trust Limited v E. Karmios & Co (London) Limited [1956] 1 QB 529 in which latter case Lord Denning MR said (page 540 - 1 of the report) :-
"But in order to work as an estoppel the representation must be clear and unequivocal, it must be intended to be relied upon and in fact relied upon. And when I say it must be intended to be relied upon, I would add that a man must be taken to intend what a reasonable person would understand him to intend. In short, the representation must be made in such circumstances as to convey an invitation to act on it".
- Further, in response to Counsel's submissions that the land owner need not know that the assurance is being relied upon, Lord Justice Lloyd said that as regards cases of express assurance he would accept that if the representation is made in circumstances in which it can be shown or presumed to have been intended to be relied upon it may not be necessary to show that the land owner knew that it was in fact relied upon.
- After a review of a number of authorities, including Gillett v Holt [2001] Ch 210, Jennings v Rice [2003] 1 P. & C. R. 100 and Uglow v Uglow [2004] WTLR 1183, Lord Justice Lloyd said that whilst there is no special rule as to the form and nature of the promise, representation or assurance which is capable of providing the basis of a proprietary estoppel case as regards a claim against a deceased's estate, it seems to him that the general requirements that:-
1. There must be a clear and unequivocal representation;
2. It must be intended to be relied upon or at the very least it must be reasonably taken as intended to be relied upon.
are of no less importance in this type of case than in others AND they must be applied with care given that statements may be made about testamentary intentions which are not necessarily intended to be taken as promises. There must be a representation which can be categorised as a promise or assurance. In principle that representation could be made by conduct or partly by conduct as well as by words. In whatever way it is made, however, it must be clear and unequivocal and it must be intended to be relied upon.
- On appeal to the House of Lords, their Lordship's House in Thorner v Majors and Others [2009] UK HL8, provided guidance in relation to the character and quality of the representation necessary for the doctrine of proprietary estoppel to apply.
- A representation can be sufficient to found proprietary estoppel even if it is not made expressly. It may be made in oblique and allusive terms providing it was reasonable for the person to whom it was made, given his knowledge of the maker and the background circumstances, to have understood the maker to mean not merely that his present intention was to leave the property to the other but that he would definitely do so. The relevant assurance must be clear enough but what amounts to sufficient clarity in a case of this kind is hugely dependent upon context.
- Lord Neuberger, at paragraph 84 of the transcript, said:-
"It should be emphasised that I am not seeking to cast doubt on the proposition, heavily relied upon by the Court of Appeal, that there must be some sort of an assurance which is "clear and unequivocal before it can be relied upon to find an estoppel. However, that proposition must be read as subject to three qualifications. First, it does not detract from the normal principle so well articulated in this case by Lord Walker that the effect of words or actions must be assessed in their context. Just as a sentence can have one meaning in one context and a very different meaning in another context so can a sentence, which will be ambiguous and unclear in one context, be a clear and unambiguous assurance in another context —. Secondly, it would be quite wrong to be unrealistically rigorous when applying the "clear and unambiguous" test. The Court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly, as well as contextually —. Thirdly -— there may be cases where the statement relied on to find an estoppel could amount to an assurance which could reasonably be understood as having more than one possible meaning. In such a case, if the facts otherwise satisfy all the requirements of an estoppel, it seems to me that, at least normally, the ambiguity should not deprive a person who reasonably relied on the assurance of all relief; it may well be right, however, that he should be accorded relief on the basis of the interpretation least beneficial to him".
- The opinions of the House of Lords may be summarised as follows:-
a. An assurance may be sufficient to found an estoppel even if it is not made expressly; it can be made in oblique and allusive terms; it may be subject to unspoken and ill defined qualifications;
b. Of importance is whether the encouragement given was "clear enough" for the person to whom the assurance was made to form a reasonable view that he was being given an assurance that he would inherit the relevant property;
c. This is an issue of fact heavily dependent upon the context in which the assurance or assurances was or were made (including the characteristics of the protagonists, the relationship between them and whether assurances were repeated and formed part of a pattern) on which evidence to the parties' subjective understanding of what they were agreeing is admissible;
d. It is unnecessary for the person giving the assurance to know the Claimant was thinking of alternative courses of action at the time the assurances were given; it is also unnecessary for there to have been a dramatic announcement in front of assembled witnesses or a "signature event".
- For proprietary estoppel to arise the Claimant must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment (Greasley v Cooke [1980] 1 WLR). But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of expenditure of money or other quantifiable financial detriment so long as it is something substantial. The requirement of detriment must be approached as part of a broad inquiry as to whether the repudiation of an assurance is or is not unconscionable in all the circumstances; for example in Gillett v Holt [2001] Ch 210, Mr Gillett and his wife devoted years of their lives to working for Mr Holt and his company showing loyalty and devotion to his business interests, his social life and his personal wishes, on the strength of clear and repeated assurances of testamentary benefits.
- There must be a sufficient link between the assurances relied upon and the conduct which constitutes the detriment (Grant v Edwards [1986] Ch 638).
- The assurances need not be the sole inducement for the conduct constituting the detriment. It is sufficient if they are an inducement.
- In Thorner v Majors, the House of Lords also address the issue of whether the identity of property, the subject of the equity, needed to remain unaltered.
- Lord Hoffman said - "— changes in the character or extent of the property in question are relevant to the relief which equity will provide but do not exclude such a remedy when there is still an identifiable property".
- Lord Walker expressed the opinion - "there is no reason to doubt that their common understanding was that Peter's assurance related to whatever the Farm consisted of at Peter's death. This fits in with the retrospective aspect of proprietary estoppel noted in Walton v Walton and Lord Neuberger stated "the extent of the farm might change, but on the Deputy Judge's analysis, there is, as I see it, no doubt as to what the subject of the assurance was, namely the Farm as it existed from time to time. Accordingly, the nature of the interest to be received by David was clear: it was the farm as it existed on Peter's death. As in the case of a very different equitable concept, namely a floating charge, the property the subject of the equity could be conceptually identified from the moment the equity came into existence but its precise extent fell to be determined when the equity crystallised, namely on Peter's death".
- Thus, changes in the character or extent of the property the subject matter of the assurances will not exclude the application of the doctrine or the grant of equitable relief where the property is conceptually identified from the moment the equity comes into existence. However, such changes may be relevant to the relief which the Court, in the exercise of its equitable jurisdiction, may grant.
- Mr Neville Kitching, Mr John Leslie Smith, Mr Howard Leslie Kitching and Mr Dawson were not in a position to rebut the evidence called on behalf of the Claimant as to the nature and extent of the work she and Dr Baczkowski did on the Farm. Though the Third Defendant was unable to adduce evidence which undermined or cast doubt upon that of the Claimant and/or the Claimant's witnesses, the Court approached the Claimant's and Dr Baczkowski's evidence with caution for the reasons already identified in the Judgment.
In addition: -
1. When the Claimant spoke to Mr Hall of Hunt & Wrigley, on the 23rd of August 2006, she stated that she wished to challenge the will but made no mention of any promises by Mr and/or Mrs Gill that she would inherit the Farm;
2. On the 25th of August 2006, the Claimant instructed solicitors but did not raise with them any promises, by Mr and/or Mrs Gill, that she would inherit the Farm upon which she was seeking to rely;
3. Within 6 weeks of Mrs Gill's death the Claimant had prepared her 53 paged document, dated the 29th of September 2006, recording her expectation of inheriting the Farm but making no mention of any promises or assurances by Mr and/or Mrs Gill that she would be left the Farm;
4. The claim originally advanced on behalf of the Claimant in the letter of the 19th of October 2006, written by Messrs. Freeman Johnson, makes no mention of any assurances on the part of Mr and/or Mrs Gill.
- Adopting a cautious approach, the Court considers that it is more likely than not the Claimant performed substantial work at both Brookfields Farm and the Farm both prior and subsequent to the death of Mr Gill. The work comprised stacking bales of straw at harvest time, driving tractors, shovelling grain into the grain dryer, operating the grain dryer, leading bales from the fields to storage, harrowing, planting, straw burning, operating bird scarers, repairing agricultural machinery, carrying out maintenance work to farm buildings etc. loading and unloading wagons and assisting in vermin control on the Farm. In addition, she assisted Mr Gill in the administration of the farming business and from 1997, at the latest, took upon herself responsibilities for sorting out problems such as drainage. After the death of Mr Gill in 1999, the Claimant supervised the Farm and the farming business on behalf of Mrs Gill. She notified Mr Wardman as to the conditions on the Farm and whether they were suitable for spring planting or harvesting etc.
- The Claimant's case is that but for assurances given to her by Mr Gill and Mrs Gill she would not have done the work which she did on Brookfields Farm and the Farm. She had what she described as a natural expectation that she would inherit the Farm and this is fully accepted by the Court. As stated earlier the relationship between the Claimant and her parents was a loving caring relationship both ways. The Court is satisfied that Mr Gill was very fond and very proud of the Claimant and Mrs Gill was very close to and substantially dependent upon her. Apart from one incident involving Mr Gill's expression of displeasure with a boyfriend of the Claimant which resulted in a temporary separation of the Claimant from her parents, she and they did not have any fall out or serious arguments or disagreements and nothing occurred which altered the close and loving relationship which existed between them. The Claimant was the only child of Mr and Mrs Gill who expected to inherit the Farm. The Court accepts that this expectation was recognised by Mr Gill and Mrs Gill. It is the traditional, though not universal, practice among Yorkshire farming families for the farmstead to be passed on from parents to children or to the eldest male child or, if the only child is female, to that daughter. Mr Gill came from Yorkshire Farming Stock in that his father had farmed in parts of North Yorkshire owning his own farms. Though Mrs Gill's parents were not farmers, it is probable she was well aware of this tradition and, in the late 1970s/early 1980s, impliedly expressed her recognition of the farm being left to the Claimant when she asked Mr Gill what they would do with the Farm if the Claimant did not return after their disagreement with her over her then boyfriend. In addition, the Court relies upon the evidence of the Claimant which is set out at paragraph 38 of her witness statement of the 8th of May 2008 which it accepts as accurate together with Mr William Wardman's evidence that after his initial meeting with Mr Gill the latter had said he wished to keep the Farm going for the "next generation". The next generation was the Claimant. It was not Mrs Gill and there was nothing in the evidence to suggest that by the phrase "next generation" Mr Gill was referring to Mrs Gill.
- The Court further finds that though Mr and Mrs Gill recognised the expectation of the Claimant that she would inherit the Farm on their deaths, they did not say or do anything to disabuse her of this expectation. In addition Mrs Gill and, to a lesser degree, Mr Gill fostered and encouraged this expectation by their words and conduct.
- During the Claimant's discussions with Mrs Gill, when a school pupil, as to what she would do with her life when she left school, Mrs Gill, in the course of those discussions, said - "you have always got the Farm". At that time the Farm was Brookfields Farm. These discussions and that statement by Mrs Gill occurred and was made on a number of occasions and similar discussions took place between the Claimant and Mrs Gill when the Claimant attended University. In the course of these later discussions, Mrs Gill said to the Claimant that - "there was always the Farm to fall back on" and/or "you can always come back to the Farm", It is more likely than not, in the circumstances of this case, that these discussions and statements occurred after the purchase of the Farm by Mr and Mrs Gill as well as before its purchase. These statements made by Mrs Gill to the Claimant were, in the Court's judgment, intended to convey to the Claimant, and did convey to her, that the Farm would be hers by way of ownership thereof upon the death of her parents and not simply that she would have somewhere to live if such proved necessary or desirable.
- In the 1970s and 1980s, Mr Gill said to the Claimant on a number of occasions that in consequence of modern farming techniques, in particular the use of contractors, the Claimant could have a career and run a farm at the same time. The context in which this was said, in particular the recognition by Mr Gill of the Claimant's expectation that she would inherit the Farm, was such as to evidence Mr Gill's implied assurance that the Farm would become the Claimant's one day or at the very least his appreciation that his statement might well be interpreted in that way. In addition, Mr Gill taught the Claimant how to farm both at Brookfields Farm and the Farm and how to make the decisions which would be required in order to do so. This conduct on his part must be viewed in the context of the Claimant's expectation of inheriting the Farm, Mr and Mrs Gill's recognition of such expectation on the Claimant's part and the fact that they did not disabuse her of that expectation. There should also be considered in this context, Mr Gill's question of the Claimant, upon being informed of her engagement to Dr Baczkowski, of - "will he make a farmer?". Mr Gill, by this remark, intended to convey to the Claimant his recognition of whomsoever married the Claimant would need to fill the role of farmer because of her inheritance of the Farm, or, at the very least, Mr Gill must have appreciated the probability of his statement being interpreted in that way by the Claimant. Mr Gill told Mr Brian Noble to work Dr Baczkowski "hard" when he assisted Mr Noble with the harvest in 1989. It is more likely than that not this was done by Mr Gill in order to test whether Dr Baczkowski would make a farmer who would meet the standards required for the purpose of working the Farm upon the Claimant's inheritance of it, Mr Noble formed the distinct impression, over some 3 years, from conversations he had with Mr Gill, that he intended to leave the Farm to the Claimant and such was Mr William Wardman's impression from Mr Gill's statement that his aim to keep the Farm going so that it would pass to the - "next generation".
- The expectation of the Claimant was further encouraged when, in 1986, Mr and Mrs Gill suggested to her that she and Dr Baczkowski should purchase White House Farm so that the "family controlled the whole patch". As the Claimant stated in evidence, and the Court accepts, the reason she and Dr Baczkowski had any interest in acquiring White House Farm, which was then uninhabitable, in a derelict condition and 55 miles from Leeds, was because it adjoined the Farm which she expected to inherit and such would have been obvious to Mr and Mrs Gill at the time or it would, at least, have been obvious to an objective observer hearing that statement.
- Dr Baczkowski had £20,000.00 in savings and the Claimant £1,700.00, This was known to both Mr Gill and Mrs Gill because there came a stage in the negotiations for the purchase of White House Farm when the Claimant and Dr Baczkowski could not afford to purchase the same. Dr Baczkowski provided £19,000.00 towards the purchase price of White House Farm and the Claimant approximately £1,000.00. In addition they carried out substantial work to White House Farm to which the Court will return later in this Judgment; in particular the list of expenditure prepared by the Claimant which totals in value approximately £135,000.00.
- Shortly after White House Farm was acquired by the Claimant and Dr Baczkowski, Mrs Dale, her children, mother and father visited that property. The exchange between Mrs Dale's father and Mr Gill is of significance, not because the Claimant witnessed or heard the exchange, but because it supports the Claimant's case as to the assurances which were made to her. In the course of the conversation between Mrs Dale's father and Mr Gill, the comment was made - "after all it'll all be hers one day".
- It is clear that this was a reference to the Farm and to the Claimant. Mr Gill by nodding in recognition of this statement was indicating his agreement with it. He certainly did not do or say anything to indicate his disagreement with the comment or to indicate that it was not accurate in any respect.
- Mr and Mrs Gill when speaking to the Claimant each referred to White House Farm as the Claimant and Dr Baczkowski's side of the Farm and such evidences their perception of both properties being effectively one. Both Mr and Mrs Gill, when making reference to things to be done on the Farm in the long term, would say to the Claimant and Dr Baczkowski - "you could do this or that". They intended by this statement to convey and did convey to the Claimant the fact that they intended her to inherit the Farm on their deaths. These statements were made on a number of occasions over a lengthy period of time.
- Prior to giving birth to Christopher on the 7th June 1997, the Claimant took maternity leave during the course of which she discussed with Mrs Gill the question of whether she should return to work full time or part time or cease working altogether. In the course of this discussion, the Claimant informed Mrs Gill of her concerns about the financial implications of giving up full time employment. Mrs Gill expressed the view that the Claimant should cease employment altogether expressly stating that she could not see why the Claimant had this concern given that she would have the Farm and Mrs Gill further stated that she did not think she and Mr Gill would be around that long. These statements when combined constitute an assurance by Mrs Gill to the Claimant that she would inherit the Farm on the death of the survivor of Mr and Mrs Gill. Mrs Gill clearly intended to convey that assurance to the Claimant and clearly intended that she should rely upon the same when considering whether to return to her employment full time or part time or not at all.
- After Mr Gill's death on the 19 of April 1999, drainage plans for the Farm were found by the Claimant and Mrs Gill advised her not to throw the plans away as they would be needed by the Claimant. She then told the Claimant to take the plans away and keep them safe. The Court is satisfied that these statements by Mrs Gill to the Claimant were made because Mrs Gill considered that the Claimant would inherit the Farm on her death and the drainage plans referable to the Farm were of considerable importance for that purpose as they identified the positions and runs of the water drainage pipes thereof. These statements reinforced the earlier assurances given by Mrs Gill to the Claimant as to her inheriting the Farm and reinforced assurances provided by Mr Gill.
- From time to time Mrs Gill would talk to the Claimant about what might happen on the Farm in the future. She spoke about preserving or doing things for the benefit of the family in the future and was keen to ensure that the Farm would be maintained for future generations. Mrs Gill was particularly concerned about two areas of woodland and of their maintenance for future generations. She spoke to the Claimant and also to Mr Wardman about this and he secured the advices of the Forestry Commission as well as explaining to Mrs Gill the Countryside Stewardship Scheme, These discussions, particularly those directly between Mrs Gill and the Claimant, constituted implied representations by her that the Claimant would inherit the Farm on Mrs Gill's death and they reinforced and re-affirmed the assurances which had been given to the Claimant that she would inherit the Farm by Mrs Gill and Mr Gill in previous years. Further they were intended by Mrs Gill to be interpreted by the Claimant in this way. Mrs Gill's expressed wish to the Claimant that the two antique tractors and the Cambridge roller should be kept on the Farm for future generations of the family to enjoy also constituted an assurance as to the Claimant's inheritance of the Farm though a far more oblique assurance than others given to her but nevertheless an assurance and reinforcement of earlier assurances to that effect. This was equally true of Mrs Gill's advice to the Claimant not to get rid of the old farm house and buildings at the Farm as the Claimant could do them up and let them out.
- Mr and Mrs Gill's attitudes towards, comments and discussions about, Christopher and his future also constituted assurances to the Claimant that she would inherit the Farm on their deaths. Mr Gill's comment to Mr Armstrong that he would love a grandchild to leave the Farm to and his obvious pleasure at the arrival of Christopher are indicative of his attitude. Mrs GilPs attitude is indicated by her encouragement of Christopher's interest in farming by her participation in his agricultural games, the gifting of agricultural toys and her encouragement of his attendance at the Farm when contractors arrived to carry out work. Mrs Gill's statement to the Claimant that she wondered what Christopher would do with the Farm clearly represented the intention that he should eventually inherit the Farm and in the context of the assurances previously provided to the Claimant, the relationship between herself and Mrs Gill, this statement of Mrs Gill conveyed, and was intended to convey, to the Claimant the implied promise that she would inherit the Farm on Mrs GilPs death and that the Claimant, in turn, would, in accordance with the tradition of Yorkshire farming families, leave the Farm to Christopher.
- The Court is satisfied that the Claimant relied upon the assurances, express, implied, direct and indirect, identified earlier in this Judgment, given by both Mr Gill and Mrs Gill and, in particular, those provided by Mrs Gill given in the context of:-
1. The close and loving relationship which existed between the Claimant and each of her parents;
2. The tradition of inheritance of farms in Yorkshire farming families;
3. The acknowledgement and approval of that tradition by Mr Gill and by Mrs Gill.
- The evidence of the reliance which the Court concludes was placed by the Claimant upon those assurances and the nature and extent of the reliance placed thereon may be summarised as follows:-
1. The very substantial time and labour which the Claimant expended both at Brookfields Farm and the Farm already addressed in this Judgment, The Court accepts the Claimant would not have spent the time and expended the labour which she did but for the assurances which she was given and her reliance upon the same;
2. The Claimant's conscious decision to adopt an academic career and forego a career in the pharmaceutical industry, the evidence of which is fully accepted by the Court as is the evidence of the Claimant's conscious decision not to expend the time and effort necessary in the areas of administration and particularly research for the promotion of her academic career as a Lecturer but to expend such time and effort working on Brookfields Farm and subsequently the Farm;
3. Adopting a return to part time employment as a Lecturer after the birth of Christopher with the corresponding reduction in income. Mr Doug Hall, FCA, calculated the total loss, both past and future, of the Claimant's earnings and pension benefits, in consequence thereof, at £188,806.00 after taking into account the saving in child care costs;
4. The purchase by the Claimant and Dr Baczkowski of White House Farm at a total price of £33,000.00, which necessitated the expenditure of nearly all their savings, which purchase would not have been made but for the assurances of Mr Gill and of Mrs Gill as to the Claimant's inheritance of the Farm and the Claimant's reliance thereupon;
5. The time labour and funds expended in rebuilding the house at White House Farm over a substantial number of years which they would not have expended but for the assurances made to the Claimant;
6. The expenditure of greater time and effort than would otherwise have been expended by the Claimant in providing daily care support for both Mr Gill and Mrs Gill.
- The Claimant in reliance upon those assurances identified earlier has sustained substantial detriment including:-
1. The provision by her, over a total of approximately 30 years, of demanding and physically strenuous labouring work on Brookfields Farm and subsequently the Farm;
2, Adopting a career in academia which provided an income which was less than she would have earned had she been employed in the pharmaceutical industry;
3. The loss of promotion in her academic career with accompanying loss of status and financial reward, the latter being calculated in a sum of £188,806.00;
4. The inability to follow full time employment as a Lecturer and the reduction in salary resultant upon her adopting part time employment as such;
5. The expenditure of funds on the acquisition of White House Farm, The time and physical labour expended in the construction of the new house together with the monies expended for that purpose comprising approximately £20,000.00 provided by Dr Baczkowski, £1,700.00 provided by the Claimant, £135,217.00 over the period 25th April 1987 to the 5th July 2007 as itemised in the spreadsheets on pages 1 to 8 of Trial Bundle E9 and the supporting invoices together with £1,999.00 in respect of plastering works;
6. The time and inconvenience of commuting to Leeds, a daily round trip of approximately 110 miles and, subsequently, of living in a caravan on site at White House Farm;
7. Residing at White House Farm which they would not otherwise have resided at;
8. The time and labour expended by the Claimant in caring for Mr and Mrs Gill in particular Mrs Gill beyond that time and labour which the Claimant would have expended had the assurances not been given to and relied upon by her.
- The necessary ingredients for the application of proprietary estoppel having been established, the Court will consider the extent of the equity when considering the nature and extent of the relief which it may grant in the exercise of its discretion in order to satisfy the equity. Though the Court has a discretion it must be exercised in accordance with judicial principles. The maximum extent of the equity is to have made good, so far as may fairly be done between the parties, the expectations of the promissee which the other party has encouraged.
- In Jennings v Rice, Lord Justice Walker said that sometimes the assurances and the Claimant's reliance on them have a consensual character falling not far short of an enforceable contract. In a case of that sort both the Claimant's expectations and the element of detriment to the Claimant will have been defined with reasonable clarity. In a case like that the consensual element of what has happened suggests that the Claimant and the benefactor probably regarded the expected benefit and the accepted detriment as being, in a general, imprecise way, equivalent or at any rate not obviously disproportionate. In such a case the Court's natural response is to fulfil the Claimant's expectation.
- The type of cases to which Lord Justice Walker was referring has been described as the "bargain" category of cases. The second category of cases addressed by Lord Justice Walker may be described as the "non-bargain" category which requires the exercise of a wide judgmental discretion, A case typical of the bargain category of cases would be an elderly benefactor who reaches a clear understanding with the Claimant (who may be a relative, a friend or a remunerated companion or carer) that if the Claimant resides with and cares for the benefactor the Claimant will inherit the benefactor's house.
- In Crabb v Aran District Council [1976] Ch 179, it was said that the Court should search for the minimum equity to do justice. Although the Court has considerable flexibility in deciding what remedy to award, the Court must take a principled approach. In deciding whether to satisfy this equity by giving effect to his or her expectations or whether to satisfy it by awarding relief on some other basis, the Court will take into account all the circumstances of the case and, in particular, whether the promissee's expectation is proportionate to the detriment suffered.
- If the promise is unspecific or general, and the detriment is relatively limited in scope and capable of compensation, the award of a monetary remedy may be appropriate.
- However, upon the elements of proprietary estoppel being established the equity arises and the value of that equity will depend upon all the circumstances including the expectation and the detriment. The task of the Court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.
- The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of proprietary estoppel and, consequently, once the ingredients of the estoppel are established, the general question which should be asked is whether, in all the circumstances of the case, it is unconscionable for Mrs Gill not to have left the Farm to the Claimant by her will. In all the circumstances of this case to which the Court has had regard the answer to that question is yes.
- The Court must consider the nature and extent of the relief to be granted to the Claimant. The expectation created and encouraged by Mr and Mrs Gill, in particular Mrs Gill, was that the Claimant would inherit the whole Farm which the Court is satisfied included the farming business carried on therefrom and Its assets. The expectation was clear, certain and not extravagant given that the Claimant was the only child of Mr and Mrs Gill, that there were no other persons with a claim to their bounty, the Claimant's relationship with both of her parents, but in particular Mrs Gill, which was loving, caring and close, that all three of them were fully aware of the tradition in Yorkshire Farming families of the Farm and farming business being passed on to the next generation and that the Farm and the farming business carried on therefrom were the only assets of Mr and Mrs Gill available to be disposed of by their wills.
- The question then must be asked whether the expectation was out of proportion to the detriment suffered by the Claimant.
- The detriment has been identified earlier in this Judgment but to summarise it comprised devotion and loyalty to and care of Mr and Mrs Gill for over 30 years to an extent greater than that which would normally be expected from, and given by, an only daughter to her parents. Hard strenuous physical labour both at Brookfields Farm and the Farm for 30 years or more. The adoption of a career by the Claimant which was not the one she would have chosen had she not relied upon the assurances made to her. The probable loss of the difference in incomes between that which she did receive from her full time employment and subsequent part time employment as a University Lecturer and what she would have received employed full time in the pharmaceutical industry. The loss of promotion prospects in her career as a University Lecturer. Her inability to return to full time employment as a Lecturer and the loss of income, including future income, and pension rights estimated by Mr Hall at £188,806.00 in consequence thereof. The purchase of White House Farm which would not have been purchased by her because of its location and its condition. The expenditure of some very substantial sums of money in the purchase of that property together with the construction of the dwelling thereat and, finally, the time and inconvenience which has already been identified.
- Mrs Talbot-Rice submits that transferring to the Claimant the Farm, of market value £2.15 million, would be wholly disproportionate to the detriment suffered by the Claimant, which, Counsel suggests, is less than £190,000.00, and is more than compensated for by the benefit the Claimant has from the purchase of White House Farm. This property has been valued by Mr Tim Gower of Robin Jessop at between £475,000.00 and £525,000.00, it having been purchased for £33,000.00 of which Mr and Mrs Gill paid £13,000.00. And such, submits Counsel, is so even taking into account the expenditure of approximately £137,000.00 over the period April 1987 to July 2007.
- The detriment suffered by the Claimant is not confined to the £188,806.00 loss of income and pension rights. It Is far more extensive and substantial than that even though it cannot be quantified in monetary terms. Further, had the Claimant and Dr Baczkowski purchased a property in the North Leeds area it is probable that its appreciation in value would have been greater than the appreciation in the value of White House Farm situated where it is in the area of Northallerton.
- In the Court's judgment, taking into account all the circumstances of this case, the transfer of the Farm and the farming business, including the equipment and the money in the farming account, is not disproportionate to the expectation of the Claimant created and encouraged by Mr and Mrs Gill and it is not disproportionate to the detriment suffered by her as a result of the reliance which she placed upon their assurances made to her.
- Clearly the assurances made by Mrs Gill were of the inheritance by the Claimant of the family farm, and the farming business, carried on therefrom whatever the family farm, and the farming business, might be at her death and this was the understanding of the Claimant who relied upon those assurances to her detriment.
- That being so, the relief which the Court would have granted, in the exercise of its equitable jurisdiction, would have been an order transferring the Farm and the farming business, including the agricultural equipment and the money in the farming account, to the Claimant. However, the Court has found for the Claimant in respect of the claim of undue influence and, consequently, the appropriate relief will be an order setting aside the will of Mrs Gill dated the 27th of April 1993.
MR JAMES H. ALLEN Q.C.
DEPUTY JUDGE OF THE HIGH COURT.
5th October 2009.
