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At 82 and my mum it doesn’t mean I won’t evict you

“Just because you are 82 and my mum it doesn’t mean I won’t evict you.”
(what can happen when relationships and minds break)

82-year-old grandmother Norma Gibbons has been evicted from her home by her daughter Dawn whom she had given the home to for “inheritance tax reasons”.

Client frequently broaches the idea of transferring their home into their children’s names with a view to avoiding nursing home fees and Inheritance tax. They take the view that their children would never seek to throw them out. But as Norma discovered children and parents can fall out. There may be multiple reasons for this. An aging parent who develops mental health problems can be a difficult person to live with. From the facts reported Norma seems to have very much provoked her daughter’s actions. The court however didn’t evict Norma due to her behaviour, but because she’d given the flat to Dawn who was legally entitled to evict her.

Mother and daughter shared upstairs and downstairs flats in Norma’s £1.4 million home of 40 years in Earlsfield, southwest London.

The Court heard Norma had willingly transferred the freehold of the entire building, including her upstairs flat worth £600,000, into Dawn’s name in 2004 as a gift to avoid inheritance tax (IHT). Tension broke out following the birth of a grandchild in 2008.

Norma subjected her daughter to a campaign of harassment which included 155 false calls to police about Dawn, calls to social services, loud noises, and the deliberate creation of water leaks into the downstairs flat.

When Dawn sought to fix the leaks, Norma would not allow any tradespeople into her flat. Dawn served her mother with court orders which were subsequently torn up and thrown into the garden, the court heard.

Norma’s behavior would seem to suggest she was having some issues with her mental capacity. The court was not asked to adjudicate on this, however. I should make two points clear at this stage:

The case has however led me to speculate on the impact a loss of mental capacity can have on the relationship between a parent and child

1. There is a presumption of mental capacity for all of us. You don’t have to prove you have it. Others have to prove you have lost it.
2. I am in no way suggesting Norma has any problem with her mental capacity

The case has however led me to speculate on the impact a loss of mental capacity can have on the relationship between a parent and child

The risk of dementia and other mental health issues does increase with age. So while it could be argued that Norma’s behavior justified her daughter evicting her. No consideration appears to have been given as to whether or not Norma should be held responsible for her actions. It doesn’t appear to have been a defense advanced by her barrister. Discussing mental capacity can be a difficult issue. It is an area of law that some lawyers have scant knowledge of. It is never easy to say to a client they are losing their capacity. Some clients are unwilling to have their mental capacity assessed. A person’s capacity can also fluctuate. The law makes it clear that capacity is time and act-specific. A person may be perfectly able to give instructions to make their will in the morning but by afternoon have no memory of it.

We have had clients who have alleged family members have stolen from them when they haven’t. false allegations apart they have been able to provide coherent instructions.

The case came before Judge Alan Johns KC at the county court in 2022. Norma claimed she had been “tricked” into making the gift in 2004 – a claim rejected by Johns J.

Nonetheless, Norma continued to prevent tradespeople from entering her flat, and subsequently, Dawn sought to have Norma evicted in November last year.

The case came before Judge Nigel Gerald. Lara Simak, representing Norma, said she wouldn’t have made the transfer if she knew of the possibility of an eviction, and that she had an “expectation to live there for the rest of her life” which must have formed part of any transfer agreement. “Certainly, she didn’t expect to be kicked out of her flat by her daughter, otherwise she wouldn’t have transferred it,” said Simak.

Gerald J rejected this defence, suggesting that a claim that there was an agreement she could stay for life and a claim that she was “tricked” are incompatible. He added any hope she could avoid eviction based on this defence “[existed only] on cloud nine, not on Planet Earth”.

Granting Dawn’s request for her mother to be evicted, Gerald J said:

“On 12th May 2022, Judge Johns determined that the flat had been gifted by mother to daughter on 19th August 2004 with the aid of a solicitor and without daughter even knowing about it,’ he said.

From that, it will follow that it was an outright gift. It would appear that that was part of some sort of tax planning.

It would also follow that mother was a bare licensee of the flat, so that following the daughter’s 20th November 2022 notice terminating the licence as of 5th December, mother was obligated to vacate possession of the flat.

Dawn told me that whilst she is unhappy about all the alleged harassing behaviour of her mother, it is not something she requires a determination of this court on.

She therefore before me simply asks for an order that her mother give possession of the property forthwith.

It would perhaps seem to an observer somewhat astonishing for a daughter to seek possession from a mother in her 80s – that is essentially a moral judgment and observation.

But if anybody were to look at the extent of the allegations by the mother against the daughter and that the daughter has been the subject of multiple harassment issues, an observer might reach the conclusion that she had been pushed to her limit.

I will order that the defendant give possession to the claimant forthwith. Hopefully, this will bring matters to an end.”

Norma was also ordered to pay £10,000 costs.

As we say above neither Judge or lawyer appears to have commented on Norma’s mental capacity. This may have been for a number of reasons, some of which we have mentioned above. Are 155 false calls to the police just a case of being vindictive or are they a sign that a person is losing the ability to act in a rationale way.

While we like to think we will always have a good relationship with our children this may not always be the case. The advent of a partner or spouse we cant stand or the deterioration in our own mental health or that of a child may lead to a breakdown in that relationship where the blunt hand of the law can have unfortunate results.

Relationships apart it is also important to consider the Inheritance and Capital Gains tax implications of such transaction. There is also a considerable body of anti avoidance legislation which can take a very dim view of you giving assets away without good reason Failure to take professional advice can lead to unfortunate results. Its also important to bear in mind we are all only human and that sometimes our mind and body can act in a manner that we never expected.

Nigel George ngeorge@garner-hancock.co.uk Partner in charge of Life Planning