A historic injustice?

Thirty years ago, studying Equity and Trusts, I first read Re Gonin [1979] Ch 16. Lucy Gonin, a woman who had never married, gave up the only chance she had to lead an independent life during the Second World War, to care for her parents in the expectation that they would leave their house to her. But after their deaths she found that she had no legal right to the house. It struck me as a great injustice, the more so as at the same time I first encountered Re Basham [1986] 1 WLR 1498, decided less than a decade afterwards in the spring of 1986. Lucy Gonin’s claim failed, but a similar sort of claim in Re Basham succeeded. Trying to understand this was a turning point in my interest in equity and trusts. And in contrast to archaic and abstract cases on the meaning of precatory words on pieces of paper handed by some be-whiskered Victorian paterfamilias to a silent wife and children, this was a story of a woman’s life in times my parents had lived through.

I recently came across Re Gonin again at a conference for contributors to a book of Landmark Cases in Succession Law. It struck me as no less an injustice on rereading. Although more a cul-de-sac than a landmark, it deserves a backward glance, if only to reflect on how much has changed since it was decided.

Lucy Gonin was born in July 1910, when Asquith was Prime Minister. She was 66 when the case was heard, in early January 1977, when James Callaghan was Prime Minister and Margaret Thatcher the leader of the Conservative party. Lucy had an older sister (Ruby) and a younger sister (Betty). Both Ruby and Betty married and left home in the 1920s. Lucy remained single. All three sisters had been born “out of wedlock”. Their mother, Ellen, was married to a man called Herbert King, but in a relationship with another man, Bertram Winter Gonin (Bertie), who was the father of her three daughters. In 1910 Herbert King divorced Ellen, naming Bertie as co-respondent. Bertie was a doctor, then aged about 35, with consulting rooms in Welbeck Street, and later a home laboratory at “The Gables”, a house with extensive grounds in the London suburb of Bromley, where he lived with Ellen and his daughters. Slightly surprisingly both for a middle-class woman who had three illegitimate children before the First World War, and the man named as co-respondent[1] in her divorce, Bertie and Ellen appear to have been very religious. Bertie chaired meetings of the British Israel World Federation, a Christian organisation founded in 1919 which believes that the British are descended from the lost tribes of Israel, and Ellen

“was a very religious woman whose favourite expression was “Thank You, Father” — “Father” being used to indicate our universal father in heaven.”

Bertie also had progressive medical views, as he was an anti-vivisectionist and in 1938 published a book called “An Outline of the Theory and Practice of Herbal Hormone Testing”. He proclaimed “miracle cures” from injecting herbal remedies. He also imported into England an experimental (and now discredited) cure for cancer invented in California — a Beam Ray machine which used electric current to destroy pathogens in the body — or so its promoters claimed.

Bertie and Ellen’s daughters were only regarded in law as legitimate children of their marriage after the Legitimacy Act 1959 came into force. Unfortunately, Ellen persisted in a belief that because they were born illegitimate she couldn’t make a valid will in their favour. If only she had consulted a lawyer, who could have advised her that she was wrong, particularly after Bertie’s death in 1957, as she knew then that she was the survivor of their marriage. And she also knew that Bertie had left no estate at all, having spent or given away most of his income. When Ellen herself died in 1968, The Gables accounted for most of her estate.

Lucy believed that she was entitled to The Gables as her own property after her mother’s death. In the judge’s words:

In 1940 Lucy obtained an appointment with the Air Ministry at Stroud, Gloucestershire. There she had a life of her own, £4 per week less one guinea for billeting, and in course of time became engaged to be married. As so often happened during the war, her fiancé was killed, and I think she naturally took it badly. At about the same time her parents asked Lucy if she would consider returning home to look after them, and obtaining a compassionate release for her to do so.

The proposition which Lucy says her parents put to her was that if she would come back home and look after them for the length of their days she could have the house and its contents. Her parents were, she said, completely frank with her. They told her that they could not actually pay her anything except pocket money — which turned out to be £2 per week, then £1 per week, then 10s. [50p] per week, and finally nothing at all — but that if she did accept she must keep faith with them and look after them for however long it took.

The decision for Lucy was not an easy one. For the first time in her life she had tasted freedom. If she went back home she might as well say goodbye to any prospects of marriage. On the other hand, her parents needed someone to look after them. They were getting on in years and indeed Dr. Gonin had just recovered from an attack of typhus and the strain of nursing him had told on Ellen. In addition, the house itself was situated in “bomb alley” and was damaged on numerous occasions. In one of these attacks . . . Lucy herself was hit by falling debris and was severely concussed. This accounts for her being somewhat imprecise as to the dates of all this. But it is accepted that she did fall in with her parents’ wishes, and in 1943 or 1944 she returned home and commenced looking after them, a task which she loyally performed until her mother’s death on November 8, 1968. At some stage, I am not quite sure when, Ellen, according to Lucy, said that she would leave written proof of the arrangements. Of course the small pittance which Lucy received from her parents was not enough for her needs. She said that at one stage her dog cost that amount a week to feed. So she turned to writing and illustrating and made something out of that.

Some of Lucy’s paintings and drawings have survived, and show an accomplished standard of drawing and use of colour, very much in the genre of illustrations for children’s books of the 1930s or earlier. But she saw herself, accurately, as the “Cinderella” daughter.

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Illustration by Lucy Gonin

Lucy Gonin’s wartime story is a strand in a much larger story. The experience of the war, both of its civilian anxieties and the opportunities opened by war work, made profound differences to women’s lives. As one writer[2] describes it:

Women had new skills, new responsibilities, while at the same time learning to live without much that, materially, they had taken for granted. Meanwhile, the men they loved were far away. At any time the news might come that they were wounded, imprisoned, disfigured or dead. But women were adapting, starting to become stronger, more independent, more reliant on their innate wits and abilities.

The judgment doesn’t go into details about Lucy’s work during the war, or about her fiancé. The judge said that she “naturally … took his death badly”. One account of a woman trapped in an impoverished home, whose fiancé was killed during the war describes her as “out of her mind with sorrow . . . walking home from work after dark, she cried in the blackout when nobody could see her tears. Part of [her] terrible anger stemmed from the feeling that [his] death had robbed her not just of love, but of the chance to escape from her home, and from her mother . . . at the age of twenty-one, [she] saw her youth, her happiness stolen from her. She felt trapped for ever in her loneliness. “I wanted to die.”

Perhaps, as she worked for the Air Ministry, Lucy had met and become engaged to an airman engaged in night bombing raids over Germany, one of the most dangerous roles in the armed forces during the war. And if she had continued to work there, she might have met another eligible fiancé, as many women did. One described her wartime engagement:

“[My fiancé] and I went out every night for ten days, and then we got engaged. One did everything very quickly — otherwise they’d simply be gone! There was a sort of stampede, a feeling that getting married was the only answer! We all got married in our twenties, and if you didn’t you were on the shelf.”

Lucy was 30 when conscription for women came into force in 1941, and 32 or 33 when she gave up her job and returned to her parents’ home, so more likely to have been fearful of the “shelf” than a younger woman would have been. Yet even if she had not married, she might have continued in employment and found a career and independence, rather than being reliant on any prospects of marriage or inheritance to change her life in the future.

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Eric Ravilious — Room 29, Home Security Control Room (1941) ©Imperial War Museum. Ravilious was a salaried war artist in the Second World War and was lost in action flying over Iceland on 1 September 1942

After Bertie’s death, Ellen did and said things which reflected her sense of obligation to Lucy. In 1962 she wrote a cheque to Lucy for £33,000 (about £700,000 now), and put it in an envelope, although she neither told Lucy about the cheque nor gave it to her. She wrote Lucy’s initials on the top left-hand corner of the cheque, and on the stub she wrote “Faith. Thank you Father”. According to Ellen Gonin’s sister, who gave evidence for the trial:

“We met at Victoria Station that summer when she told me her worries that owing to the illegitimate nature of her children’s birth, she was afraid any will she might make would be invalid. She showed me a large cheque she intended you to have as proof of a deed of gift to you in her intentions. She said definitely that she wished you to inherit all the property as you have devoted your whole life to her and Bertie. She was worried that you had given up all ideas of marriage in this service for her, so you would have no children nor grandchildren to look after you in old age, and no savings either, as you had no wages. She knew that if any will of hers was set aside her things would all go to her brothers and sisters as then living, and this would be very unjust to you.”

Ellen’s sister even signed the back of the cheque stub as witness of its authenticity. But Ellen overlooked the fact that her mandate to the bank died with her, and so the cheque could not be presented and honoured after her death.

In 1963, Ellen sold the part of the grounds of The Gables where Bertie had had his laboratory for £7,000, without saying anything about it to Lucy. Then at some time between then and her death in 1968, she sold three further plots of land from the grounds for house-building, for £12,000, to a purchaser found by Lucy herself. Lucy said:

“Mother said she felt she would like to pay that to me as a reward for long years of service, but I said ‘No’ it would be better if she still felt independent.” In cross-examination she said that her mother said something like “I think it is about time I paid you something since you have worked for 100 years without wages.” Lucy added that she had got used to living with next to nothing and did not say anything because she thought she was going to get it all on her mother’s death anyway.

After Ellen’s death in November 1968, Lucy took two years to obtain letters of administration to her mother’s estate, in September 1970, and another three to issue her claim, in September 1973. The hearing in January 1977 was nearly a decade from Ellen’s death. The judge was critical of Lucy’s “intolerable delay” before issuing her claim. Ruby (or rather her son, who spoke for her) was Lucy’s opponent. Betty chose not to become involved.

Lucy had three legal arguments. Firstly, that she and her parents had made an oral agreement that she should have the house, in return for living with and looking after them for the rest of their lives. This could only be a binding agreement if there had been part-performance. Like pre-decimalisation currency, the law of part-performance of land contracts is now only remembered by those old enough to have had to learn it, having been superseded the Law of Property (Miscellaneous Provisions) Act 1989. But it was alive and relevant and had been the subject of a House of Lords decision the year before Lucy Gonin’s case. It was of no avail to her.

Secondly, Lucy argued the rule in the 19C case of Strong v. Bird should apply. This is that a legally incomplete gift can be made effective if the recipient of the gift is appointed as executor of the estate of the person who made the gift. There had been a case in which the rule had been extended to administrators on intestacy as well as to executors appointed under a will. But the judge doubted that this was right, and also said that Ellen had not had any continuing intention to make an immediate gift of the house to Lucy. After the cheque for £33,000 in 1962, he found it impossible to think that what Ellen really had in mind was anything other than that Lucy would inherit the cheque on her mother’s death.

Thirdly, Lucy applied for reasonable provision under the Inheritance (Family Provision) Act 1938, the predecessor of the Inheritance (Provision for Family and Dependants) Act 1975. As an unmarried daughter, she was in one of the very limited categories of people eligible to claim under the 1938 Act. She failed because she hadn’t started the claim within the primary time limit of six months from the date of probate, and the judge refused to extend the time limit. The delay had been too long, and had caused prejudice to Lucy’s sisters, even though their shares of the estate han’t been distributed to them.

Although Lucy’s claim failed, she wouldn’t, I hope, have been left destitute by the case, because she would still have been entitled to a third of the value of her mother’s estate on Ellen’s intestacy. But she brought the claim with legal aid, and may well have had to pay back some of her costs from the share of the estate that she inherited; and the estate value itself, or her share of it, may also have been reduced by paying her sister’s legal costs. History doesn’t relate how she fared afterwards. In the 1980s the local authority gave planning permission for new houses to be built on the site of The Gables, but presumably the house had long since been sold by then.

On first rereading the decision, I was struck both by the injustice of the outcome and the archaism of much of the judicial prose. Even in 1977, I can’t remember phrases such as “out of wedlock” or “our universal father in heaven” being in general use amongst educated people. Few judges would now use a legal Latinism such as “damnosa hereditas” (a burdensome inheritance) without explaining it. And there’s a jarring passage of intellectual one-upmanship of the sort which people indulge in with each other in small worlds, where the judge found a mistake in a well-known legal textbook edited by another judge and said:

“Snell[3] is well known — even while we yet rejoice in the health and strength of Megarry V.-C[4]. and his current co-editor — as being a work of uncommon accuracy. In this instance, however, I fear that Homer has more than merely nodded[5], he has snored, and since he has obviously been asleep since 1891 that is perhaps not surprising.”

Despite this, on a second rereading, I felt my criticisms were a bit unfair. The judge’s fact-finding was meticulous and his legal reasoning scrupulous, if narrow. He criticised the accuracy, but not the honesty, of Lucy’s evidence, expressed sympathy for her position, and largely allowed the narrative of her story to speak for itself without insensitive comments about her life and expectations.

On rereading, what is most striking about the case is a sense that the same facts would surely give rise to a very different outcome now. A modern court would be less concerned with the formal requirements of a contract or immediate gift of the property between Lucy and her parents. Instead, as in Re Basham, the question would be one of equity, which is an obligation of conscience. All the fact-finding in the judgment in Re Gonin which led away from the conclusion that there was a valid binding contract or immediate gift between Lucy and her parents led instead to the judge finding “the whole emphasis” being on Lucy inheriting in the future. Yet there is nothing in the legal arguments at the trial to suggest that this promise of future inheritance could have given rise to any rights for Lucy. As it happens, Lucy’s barrister was Michael Hart, who I later came to know very well as a colleague and a friend. He was a brilliant lawyer, later a High Court judge, and a man of progressive ideas. I don’t remember ever discussing the case with him, but feel sure that he would have had great sympathy for Lucy’s position and a strong wish for her to succeed in her claim.

In the light of the law as it has developed since Re Basham it seems impossible not to believe that a court would now find that Bertie and Ellen had made specific, articulate promises to Lucy that she would inherit The Gables and its contents — far more clear, in fact, than those in some of the modern “taciturn farmer” cases; that in giving up her work and her independence in life Lucy had obviously relied on those promises to her detriment, and that it would be unconscionable for Ellen’s estate to be distributed as if none of this had happened. It’s less obvious whether Lucy would have been entitled to inherit The Gables, which was the full extent of her expectation, or whether something less would be the “minimum equity to do justice”. But even the cheque for £33,000, although devalued by the inflation of the 1970s, would have made a difference to the life of a woman who was 58 when her mother died, and had not had the opportunity to work, save or acquire any assets since the Second World War.

Lucy’s Inheritance Act claim would also probably fare very differently now. Under the 1938 Act, the time limit for bringing a claim was an absolute deadline. A power to extend time was introduced in 1966, but it was only in 1980 that a judge attempted to set out some principled guidelines to it, in Re Salmon [1981] Ch 167. That judge, Sir Robert Megarry, resisted the temptation[6] to respond in similar vein to the judicial sniping at his editorial oversights in Re Gonin. And without going as far as saying Lucy Gonin’s case had been wrongly decided, he made a distinction between the prejudice caused by delay where an estate had been distributed before a late claim was brought, and where it had not. It’s difficult to believe that Lucy would not now be permitted to bring her claim out of time. Whether she could have made a case under the Inheritance Act for keeping The Gables as her home as “reasonable provision” for her maintenance seems doubtful, but she would at least have been protected from having to make do with her one-third share of her mother’s estate both to house and keep herself for the rest of her life.

Contrast Lucy Gonin’s position with that of Beryl Myers, a woman born in 1944, whose father had old-fashioned expectations of how women should be educated and lead their lives. Beryl attributed her limited employment opportunities to her lack of further education, itself a consequence of her father’s belief that an educated woman was “a danger to society”. Her relationship with her father was difficult, with periods of estrangement. She was completely disinherited on his death, and in straitened financial circumstances. Beryl was awarded quite substantial provision from her father’s estate on her claim, in Re Myers [2004] EWHC 2004 (Ch) — sufficient to provide her with a secure home for life in Paris, where she had settled, and maintenance for the foreseeable future. Inheritance Act claims involve weighing up objective factors rather than the subjective thoughts that influence people in making wills — as the judge said:

“[Beryl] is not entitled to succeed merely because the reasons which commended themselves to a man old enough probably to have had some memory of the First World War might not equally commend themselves to a judge who was not even born when the Second World War ended.”

It was Lucy Gonin’s misfortune to have been born just before the First World War, and to have given up her independence in the course of the Second World War. A single woman in a similar position even a decade younger would have been better protected by the law from her parents’ failed attempt to mitigate the financial insecurity that was their real legacy to her.

[1] Before divorce law was reformed in the 1970s, the word co-respondent carried an invariable pejorative connotation of adultery, even giving rise to the expression “co-respondent’s shoes” to describe “the sort of thing a co-respondent to a divorce petition would have worn in the days of ‘tecs in stained fawn macs and battered hats and evidence gleaned from the edgy, lubricious servants of seedy seaside hotels” Nicholas Storey: History of Men’s Fashion 2008

[2] Virginia Nicholson: Millions Like Us — Women’s Lives During The Second World War (2011), from which this and the following quotations are taken. See also Wartime Women: A Mass Observation Anthology of Women’s Writings 1937–1945 edited by Dorothy Sheriden

[3] Snell’s Equity now in its 33rd edition, a legal textbook originally written by Edmund Henry Turner Snell, first published in 1868.

[4] Sir Robert Megarry, then Vice-Chancellor (most senior judge) of the Chancery Division of the High Court

[5] An expression meaning that even a great person makes mistakes

[6] Perhaps with difficulty, as his 2006 obituary in the Daily Telegraph recorded that he was well known as a witty conversationalist and for his dry ripostes, as well as for “a racy turn of phrase” in his judgments

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English barrister & mediator — specialising in disputed succession & decision-making for people who lack mental capacity

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