Ball v Ball and will disputes following sexual abuse

In the recent case of Ball v Ball [2017] EWHC 1750 (Ch), the court had to deal with a will dispute which arose when the wife of an abuser disinherited 3 of the children who reported their father to the police.

The impact of sexual abuse on a victim can last all their life. Even on the death of their abuser, they may continue to suffer. This is certainly the case if the abuser is a family member who then disinherits the victim – a final act of retribution, perhaps, in retaliation for reporting the abuse, or simply a final act of control. This is recognised by the courts in the context of an abuser/victim relationship – but what if the Testator was not the abuser?

The Facts in Ball v Ball

3 of the children of James Ball and his wife reported their father to the police in relation to sexual abuse that he had carried out. The abuse was known about from as early as the 1960/70s. Mrs Ball, talked to all 11 of their children about whether they had other allegations to make. At that point, no report was made to the police. Following a family dispute in 1991, the 3 children who had been abused previously then reported their father to the police. Mr Ball admitted the offences in respect of 2 of his children and received a suspended sentence. In 1992, Mrs Ball made a will which effectively disinherited the 3 children who had made complaints to the police. She felt the complaints were exaggerated even though she accepted there was some truth in them. She was also upset that the complaints had been made public when she thought they had dealt with them within the family. Mr Ball died in 2004, Mrs Ball in 2013.

The children concerned brought a will dispute claim. They argued that their mother had made in 1992 claiming that she had been subject to undue influence, or lacked mental capacity to make the will. They also brought a claim under the Inheritance Act (Provision for Family & Dependants) Act 1975. The argument in relation to testamentary capacity was that Mrs Ball was misled as to the facts and believed that her husband was innocent when he was actually guilty. On the point of undue influence, the claimants argued that the Testator made her will at the same time as her husband, used the same solicitor and was under great stress at the time.

The judge rejected all the claims.

• On the facts as he (the judge) found them, Mrs Ball was aware that 3 of her children had reported their father to the police and that he had admitted some of the claims of abuse. She was not misled as to his guilt or innocence.
• Mrs Ball was the dominant partner in the relationship and the fact that they made their wills at the same tie and using the same solicitor, and that Mrs Ball was under a lot of stress, did not amount to positive evidence of undue influence on the husband’s part over his wife.
• The sexual abuse by the father did not give rise to a ‘moral claim’ by the claimants under the Inheritance Act in respect of their mother’s estate.

Will dispute, testamentary capacity and ‘Mistake’

Although the judge found, on the facts, that the wife was not misled as to her husband’s abuse of their children and his guilt, he went on to consider whether a mistake could negate testamentary capacity. Reviewing a number of authorities that were introduced during the hearing of this will dispute, the judge found that a mistake would only be relevant when it was a symptom of some underlying condition – for example dementia – that removed capacity. In Ball v Ball, it was accepted that Mrs Ball was not suffering any physical or mental illness at the time she made the will, so even if there had been a mistake (which the judge found there was not), in these circumstances it would not have been enough to challenge Mrs Ball’s testamentary capacity.

Moral Claims under the Inheritance Act following Ball v Ball

Following the Supreme Court in Ilott v Blue Cross, the issue of whether there is a ‘moral’ element to a claim by an adult child under the Inheritance Act has come to the fore. In that case, the Testatrix had disinherited the daughter apparently in retaliation for her choice of partner, and despite attempts by the daughter to seek reconciliation. While accepting the proposition that sexual abuse by a testator could be taken into account, following the judgment in Marks v Shafier [2001] All ER (D) 193 (Jul), in this case, the Testatrix was not the abuser. When looking at all the other circumstances, including the size (modest) of the estate, the financial circumstances of all the beneficiaries as well as the claimants. In Ball v Ball, Mrs Ball’s clear intention to disinherit the claimants throughout the 20 years following the will’s execution, the judge could not uphold the Inheritance Act claim.

Above else, this case illustrates the fact that however distressing the circumstances may be that lead to the will dispute, the courts can only declare a will to be invalid, or award maintenance under the Inheritance Act, if the legal requirements to do so are met. While it may seem harsh that these 3 claimants received nothing from their mother, the will was a valid will, and the conditions to make an award under the Inheritance Act were not met.