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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Henderson v Wilcox & Ors [2015] EWHC 3469 (Ch) (03 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2015/3469.html Cite as: [2016] 4 WLR 14, [2015] EWHC 3469 (Ch), [2016] WTLR 475, [2016] 1 P &CR DG17 |
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CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Bull Street, Birmingham B4 6DS |
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B e f o r e :
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Ian Robert Henderson |
Claimant |
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- and - |
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June Wilcox (1) Julian Marcus Wilcox (2) Andrew John Robertson (3) Cynthia Jamieson Duff (4) |
Defendants |
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The Defendants did not appear and were not represented
Hearing dates: 4 November 2015
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Crown Copyright ©
HHJ David Cooke:
i) Mrs June Wilcox, who is Mrs Henderson's sister-in-law and was named together with Ian as an executor in her will. Mrs Wilcox has obtained a grant of probate, power being reserved to Ian to prove. She filed an acknowledgement of service stating that she takes a neutral position as executor.ii) Julian Wilcox, son of Mrs Wilcox and therefore nephew of Mrs Henderson who is named in the will as substitute beneficiary if Ian should predecease his mother. The effect of s33A Wills Act 1837 is that if Ian is precluded from inheriting under the will by virtue of the forfeiture rule, he is to be deemed to have died immediately before the testator, with the result that Julian would inherit in his place. Julian filed an acknowledgement of service stating that he did not wish to be involved in the claim.
iii) Mr Andrew Robertson and Mrs Cynthia Duff, who are solicitors practising with a firm in Scotland, and whom I will refer to as "the Solicitor Trustees" for reasons that appear below. Their position, set out in a letter, is that they do not intend to defend the claim but will take account of the court's decision in the exercise of their powers as trustees.
Does the Forfeiture rule affect the Trusts?
Property passing under the will
"2 Power to modify the rule
(1) Where a court determines that the forfeiture rule has precluded a person (in this section referred to as "the offender") who has unlawfully killed another from acquiring any interest in property mentioned in subsection (4) below, the court may make an order under this section modifying the effect of that rule.
(2) The court shall not make an order under this section modifying the effect of the forfeiture rule in any case unless it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified in that case.
(3) In any case where a person stands convicted of an offence of which unlawful killing is an element, the court shall not make an order under this section modifying the effect of the forfeiture rule in that case unless proceedings for the purpose are brought before the expiry of the period of three months beginning with his conviction.
(4) The interests in property referred to in subsection (1) above are—
(a) any beneficial interest in property which (apart from the forfeiture rule) the offender would have acquired—
(i) under the deceased's will…
5 Exclusion of murderers
Nothing in this Act or in any order made under section 2 … shall affect the application of the forfeiture rule in the case of a person who stands convicted of murder."
"[Section 2(2)] requires that the judge should look at the case in the round, pay regard to all the material circumstances, including the conduct of the offender and the deceased, and then ask whether "the justice of the case requires" a modification of the effect of the forfeiture rule... The court is entitled to take into account a whole range of circumstances relevant to the discretion, quite apart from the conduct of the offender and the deceased: the relationship between them; the degree of moral culpability for what has happened; the nature and gravity of the offence; the intentions of the deceased; the size of the estate and the value of the property in dispute; the financial position of the offender; and the moral claims and wishes of those who would be entitled to take the property on the application of the forfeiture rule."
"The discretion is a broad one, and it is legitimate to have regard to all the consequences of the order, but it is not right to approach the exercise of the discretion as if dealing simply with an inter partes dispute…The first, and paramount consideration, must be whether the culpability attending the beneficiary's criminal conduct was such as to justify the application of the forfeiture rule at all... I have already given my reasons for suggesting that it is likely to be appropriate to relieve the unsuccessful party to a suicide pact of all effect of the forfeiture rule…"
The offence and surrounding circumstances
"Lillian was brought into the QE this morning Wednesday, 13 March, 2013 by helicopter arriving at 08:34 hours… Due to the injuries she sustained she has remained unconscious on ITU and is ventilated and sedated. Her injuries include a periorbital haematoma around the eye, left, blood around her nose, laceration over her right temple, soft tissue swelling at the back of her head. The CT scan revealed no bleed to the brain but did reveal a broken nose, no evidence of skull fracture ... She had multiple bruises and abrasions to the left upper arm and similar marks to her right arm. The CT scan of her chest revealed fractures to her 7th and 8th ribs on the right and on the left fractures on the 6,7,8,9, 10 and 11th ribs. She also had a collapsed right lung. She had bruises to the anterior abdominal wall and the CT scan revealed intra-abdominal pleading. There was no evidence of pelvic fractures. Examination of both legs revealed significant bruises on the upper thigh of both legs and bruises over the outer aspect of her right ankle… the general appearance of [Mrs Henderson] is one of a person who is unkempt and [suffering] a degree of neglect.
In summary her injuries are not consistent with a fall from standing height but reflect [a] mechanism of higher energy. It is unclear how she has sustained such injuries. There is evidence that not all of the bruises have been sustained within the last 24 hours."
"The deceased … received serious blood injuries on 13 March, 2013. It is these injuries and their direct consequences that have in my opinion played a major part in causing her death …
[It] is my opinion that the major injuries in this case are not consistent with a simple fall in the bathroom where she was found. Rather these injuries are more typical of a blunt assault such as by forceful punching to the face, chest and abdomen…
The bruises to her chest are associated with multiple bilateral fractures and clinical evidence of a right-sided pneumothorax (that is to say a building up inside the chest cavity causing the lung to collapse)… the changes seen in the ribs examined would be consistent with [these] having occurred at about the time of the incident in question…
The injuries to her abdomen were associated with internal bleeding which may well have been a major source of blood loss in this case leading to her documented hypotension and requiring blood transfusion… This blood loss would have placed her at significant risk of damage to major organs, particularly the brain, as is the case here.
The damage to the brain takes two main forms, the first the direct result of blunt head injury… and the second the areas of ischaemia consistent with the effects of the other injuries described above. The combined extent of head injuries is clearly very serious and would not only explain her clinical status when found and subsequently but would also have played a major part in her death.
In addition to these injuries I note that the photographs taken in life show a series of bruises to her upper arms which have a round or ovoid shape. Such bruises are typical of forceful gripping…
Taking all these factors into consideration I give as a cause of death:
1a. Multiple injuries (including blunt injuries to the head, chest and abdomen)…"
"He described having an argument with his mother and punching her. He described punching her repeatedly. He described 'I could not cope with it, she was leaving all the bills in the wardrobe. She used to sort them all out before but she was not doing it. She was leaving money all over the place and then said I didn't take it'. He described telling her that he could not do the work around the house and also look after the money. He described her telling him 'she told me to grow up'. He stated 'I lost it at this'. He went on to state 'I hit her with my hand, punched her three or four times'. He described her subsequently falling onto the floor of the bathroom. He stated that he subsequently rang the ambulance. When I asked him why there was such a gap in time between him calling the ambulance and her injuries he stated that 'I thought she was dead and the police would catch me. I was worried about the police. I thought I had murdered her. I was frightened of getting into trouble, frightened of going to prison'.
He repeatedly stated that he did not want to kill his mother, but he had 'snapped when she said grow up'. He described 'things were getting on top of me'. He described low mood, tiredness and early morning awakening. He went on to describe struggling to cope and stated that he was not eating well and had lost weight. He stated that he was 'getting more and more angry'. He stated that he was struggling to take the dogs for a walk and do 'things around the house'. He described his mother complaining about things being dirty but not doing anything and he stated 'she would ask me to do it and I could not'.
He repeatedly expressed regret for his actions. "
"A combination of moderate depressive episode, mild learning disability and an autistic spectrum disorder are present in Mr Henderson's case. All the above are mental disorders within the meaning of the Mental Health Act 1983 and in combination form a serious mental disorder in his case. He currently has a mental disorder of a nature and degree that requires urgent treatment in hospital… therefore he is currently detained at St Andrews Healthcare, Northampton…
In my opinion the index offence occurred… due to
(a) Mr Henderson's mental disorder, i.e. a combination of a moderate depressive episode, his learning disability and his autistic spectrum disorder
(b) Deterioration in his mother's physical and mental health, which are becoming increasingly frail and not being able to act as his care. The role reversal occurring resulting in him being required to care for her with which he could not cope .
(c) He lacked the cognitive abilities to make a shift in role. He became increasingly depressed, with increasing irritability, low mood, tiredness and early morning awakening and agitation being driven by his depressive illness.
"... The above medical conditions, individually and in combination, produced an abnormality in his mental functioning and lead to an abnormal mental state, which impaired his judgement and also his impulse control. His mental disorders would have significantly affected his level of functioning and his ability to cope with the stresses of his mother's deteriorating health and lack of care that he suffered ..."
"Mr Henderson at present functions in the range of a mild mental retardation… his full scale IQ most recently was 57 and on cognitive testing… he scored 60 out of 100 (a score below 82 may indicate possible organic pathology or cognitive difficulties). There are previous accounts for mental health professionals that he had learning difficulties, though information suggests that he attended mainstream schools. It is possible that years of social isolation and anxiety dependent on his mother as well as a lack of stimulation contribute to his assessed functioning in the range of mild mental retardation. However this does not necessarily indicate that Mr Henderson has an intellectual disability as defined by the Royal College of Psychiatrists…
Mr Henderson has symptoms of an autistic spectrum disorder and possibly lies along the autistic spectrum...
Mr Henderson appears to have developed a depressive order in prison and has a history of depressive orders; which is possibly on a background of a recurrent depressive disorder, currently in remission... He is not currently presenting with symptoms of a depressive disorder.
It is my opinion that Mr Henderson would have known what he was doing was legally wrong and would have understood the nature and quality of the act he is alleged to have committed. With this in mind, Mr Henderson would not satisfy the criteria for insanity … From the information available though there is the possibility that Mr Henderson may have been suffering from an abnormality of mental functioning, arising from his mental disorder, there is insufficient information to indicate that he was suffering from a depressive disorder at the time of the index offence, which would have substantially impaired his ability to understand the nature of his conduct, form a rational judgement or exercise self-control. This would not therefore provide an explanation for his acts or omissions in relation to the alleged index offence … I note Dr Maganty's opinion that Mr Henderson's responsibility for his actions at the material time would have been substantially diminished."
Other matters
Conclusions