COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE WALL)
B e f o r e :
LORD JUSTICE HENRY
SIR JOHN MAY
|IN THE MATTER OF DERRICK WILFRED CHARLES JENNINGS DECEASED|
|DAVID ROBERT DERRICK HARLOW|
|(1) NATIONAL WESTMINSTER BANK PLC|
|(2) DOROTHY FLEMING|
|(3) LORNA HOBBS|
|(4) LORNA HOBBS|
|(5) MARTYN ASKWITH|
|(6) MICHAEL HUTCHINSON|
|(7) MRS MICHAEL HUTCHINSON|
|(8) RENEE ASKWITH|
|(9) STEFAN KARMIERCZAK|
|(11) MIKE BOLGER|
|(11) THE BLUE CROSS ANIMALS HOSPITAL|
|(12) THE GUIDE DOGS FOR THE BLIND ASSOCIATION|
|(13) AGE CONCERN|
|(NATIONAL OLD PEOPLES WELFARE COUNCIL)|
John Larking, Chancery House, Chancery Lane,
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)=
MR. I. LEEMING QC and MR. N. BIRD (instructed by Tickle Cross Hall of St. Helens, Merseyside WA10 1EE) appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE NOURSE: The main question here is whether, on an application by an adult child of the deceased for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, the obligations and responsibilities to which the court must have regard pursuant to section 3(1)(d) can, as Mr. Justice Wall has held, include obligations and responsibilities which the deceased failed to discharge during the child's minority, in this case many years beforehand.
The deceased was Derrick Wilfred Charles Jennings, who was born on 17 October 1917. He was an electrician by trade. On 7 February 1942 he was married to Peggy Olga Dean. They had one child, the plaintiff David Robert Derrick Jennings (now Harlow), who was born on 20 October 1943 and is 50 years old. In June 1945 the deceased and his wife separated and she and the plaintiff went to live with her parents. In 1947 the deceased and his wife were divorced. She remarried in 1948, becoming Mrs. Harlow, and in September 1949 she changed the plaintiff's surname from Jennings to Harlow by deed poll.
Between the separation in June 1945 and July 1947, when the decree nisi was granted, the deceased visited Mrs. Harlow and the plaintiff on about three or four occasions. He never made any financial provision for her. Although she asked for financial provision to be made for the plaintiff, the only thing the deceased ever did for him was to send him ten shillings in a birthday card on his second birthday. Mrs. Harlow never saw the deceased again after July 1947. He had no contact of any kind with the plaintiff who, from the age of 4, was brought up by his mother and stepfather. They themselves had one child, a son born in 1952. Mr. Harlow died in 1975, leaving only a modest estate.
The judge found as a fact that there had been no good reason for the deceased's failure to support the plaintiff or seek contact with him, and that as a consequence the deceased failed to honour his moral and financial obligations towards the plaintiff during the latter's minority. That is a finding of great importance in the case.
The further facts, which I take mainly from the judgment of the judge, can be stated rather more briefly than was necessary in the court below. In about 1988 the plaintiff began to make efforts to find the deceased, but it was not until the end of August 1990 that he reached a point where the Department of Social Security had made an offer to forward a letter to the deceased. The plaintiff duly wrote him a letter dated 4 September, which was forwarded by the Department on 10 September. By what the judge described as an unhappy irony, the deceased died on 5 September 1990 without having received the letter. He was 72 years of age. He had never married again. There had been a lady with whom he had lived for many years, but she had predeceased him. Apart from the plaintiff, there was nobody who had the necessary status to make an application under the 1975 Act.
By his last will dated 18 January 1989 the deceased, having appointed National Westminster Bank PLC ("the Bank") to be the executor and trustee thereof, bequeathed 15 pecuniary legacies amounting in the aggregate to £170,000 and, subject thereto, gave his net residuary real and personal estate to the Blue Cross Animal Hospital, the Guide Dogs for the Blind Association and Age Concern England (National Old People's Welfare Council) in equal shares. The pecuniary legacies, of which the two largest were of £40,000 each and the six smallest of £500 each, were given either to remote relations by marriage or to friends of varying degrees of closeness to the deceased. The circumstances of most of the pecuniary legatees were examined by the judge, who summarised the position by saying that there was no evidence that any of the beneficiaries (whether pecuniary or residuary legatees) had a particular claim on the bounty of the deceased. It is not suggested that that was not a fair assessment of the position.
The deceased's will was proved in the Brighton District Probate Registry on 26 April 1991, the net value of his estate being stated for that purpose to amount to £255,859. The estate consisted almost entirely of quoted securities then worth about £250,250, which subsequently increased in value. At the hearing before the judge the estate was taken to be worth about £300,000 after payment of inheritance tax (excluding further tax payable as a consequence of any order made in favour of the plaintiff).
Finally, in dealing with the facts, I turn to the plaintiff and his circumstances. Having been brought up by his mother and stepfather in what the judge described as modest circumstances in London, he left school in 1959 at the age of 15, after which he had a number of low paid clerical employments until he moved to the north of England in 1964. In April 1965 he was married. He and his wife have two daughters, now aged about 25 and 21 respectively.
In his judgment the judge described the plaintiff's business activities from 1966 onwards. Since 1990 he has had two companies, Harlow Hire Ltd., which is engaged in the business of plant hire to the building industry, and Harlow Marquees Ltd., which is engaged in the business of hiring marquees. The judge said:
"I have seen accounts of both companies, which provide the Plaintiff's means of livelihood. Both have survived the recession and both are moderately successful. The Plaintiff is a 60% shareholder in each: the remaining shares are held by his wife. In 1989 Harlow Hire Limited was able to declare a dividend of £84,000 on a turnover of just under £600,000 and a profit after tax of £101,867, in addition to directors' renumeration and other costs including pension of £34,182: in the year end September 1992 the turnover had shrunk to £376,314 and the profit on ordinary activities after taxation to £19,735. No dividend was declared and the Plaintiff's renumeration reduced to £24,000. However, the company was able to build and thus acquire a store for use by Harlow Marquee Hire Limited at a cost of £43,654 but which is worth, in fact, in the order of £80,000.
The Plaintiff told me that of the two companies, Harlow Marquee Hire Limited had in fact fared better during the recession. The accounts show an improvement from a net loss of £27,688 for that year ended to a modest profit £2,167 for the year ended 31st March 1991, although the balance sheet remains in deficit."
Having made further reference to the two companies and their balance sheets, the judge continued:
"Suffice it to say for present purposes that due, I have no doubt largely if not entirely to the Plaintiff's efforts, the two companies provide the Plaintiff and his family with a comfortable standard of living. Furthermore, there is no evidence that the Plaintiff is likely to encounter financial difficulties in the future providing he maintains his health and his capacity to work."
The plaintiff and his wife are the joint owners of their own house at Mere in Cheshire. It has four bedrooms, an outdoor swimming pool and some three and a half acres of land which are rented to a local farmer for grazing. The property was acquired in 1986 for £125,000. In an affidavit sworn in August 1991 the plaintiff valued it at £400,000 to £450,000, but in another sworn in April 1993 he said that it had probably reduced in value somewhat from that figure. The property is subject to an instalment mortgage, originally for £50,000, in favour of Barclays Bank repayable over a period of 20 years from 1986, in respect of which the monthly repayments were approximately £475 at the time of the hearing before the judge. The principal sum then outstanding was about £43,400. Those figures were not available at the hearing below. The property is also subject to a second charge to secure an overdraft facility of £90,000 in favour of the marquee company. No demand has been made on the plaintiff in respect of that contingent liability.
It is a somewhat unusual feature of the case that the plaintiff has not itemised his outgoings and set them against his income. When asked in cross examination what he did with his income, he said that he paid his mortgage and that the rest went on general living expenses, including some provision for his daughters who were both living at home. He said that he and his wife took foreign holidays, possibly two a year, if the business was successful enough to allow them to do so. The judge said that the plaintiff's standard of living did not strike him as in any way extravagant or unreasonable. He pointed out, however, that the plaintiff had not to date made any substantial provision for his retirement. He had only one pension policy, which in April 1991 was worth some £23,000.
The proceedings were commenced by an originating summons issued in the Family Division on 8 August 1991. The trial took place before Mr. Justice Wall in Manchester on 22 April 1993, when judgment was reserved until 5 May. The judge had before him three affidavits of the plaintiff and one sworn by his mother, Mrs. Harlow. On the other side, affidavits were sworn by most of the pecuniary legatees. Affidavits were also sworn on behalf of the Bank. No evidence was put in by or on behalf of the three residuary legatees. The judge heard the oral evidence of Mrs. Harlow, who struck him as a woman with a clear and consistent memory and as one of transparent honesty, and of the plaintiff himself, who struck the judge as a perfectly decent, straightforward man.
The judge asked himself two questions: first, whether it was unreasonable for the deceased to make no financial provision for the plaintiff's maintenance; secondly, if it was, what, if any, financial provision did the plaintiff, in all the circumstances, reasonably require for his maintenance. He answered the first question in the affirmative. Under the second, being of the opinion that the plaintiff reasonably required an amount which would enable him to discharge or reduce the mortgage on his house, he awarded the plaintiff a lump sum of £40,000.
The judge did not have to decide how the £40,000 should be borne as between the pecuniary and residuary legatees. That was because they had very sensibly come to an arrangement amongst themselves, which had the further advantage that they, together with the Bank, could all be represented by the same counsel and solicitors. The present position is that the pecuniary legacies have, with the consent of the residuary legatees, been paid in full; with the result that it is only the latter who appeal to this court. On present figures, and without regard to any orders as to costs which may be made by this court, each of the charities will ultimately receive about £1,700, whereas if the appeal is allowed and the plaintiff receives nothing, each will receive about £24,000.
"Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:
(a) the wife or husband of the deceased;
(b) a former wife or former husband of the deceased who has not remarried;
(c) a child of the deceased...
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant."
"In this Act 'reasonable financial provision'
(a) in the case of an application made by virtue of subsection (1)(a) above by the husband or wife of the deceased ... means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance;
(b) in the case of any other application made by virtue of subsection (1) above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance."
"Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders
(a) an order for the making to the applicant out of the net estate of the deceased of such periodical payments and for such term as may be specified in the order;
(b) an order for the payment to the applicant out of that estate of a lump sum of such amount as may be so specified..."
"Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its power under that section, have regard to the following matters, that is to say
(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future.
(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased; (e) the size and nature of the net estate of the deceased;
(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant."
Section 3(3) provides that where an application for an order under section 2 is made by virtue of section 1(1)(c) or (d) the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the manner in which the applicant was being or in which he might expect to be educated or trained. Section 3(5) provides that in considering the matters to which the court is required to have regard under section 3, it shall take into account the facts as known to it at the date of the hearing. Section 3(6) provides:
"In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities."
The well recognized effect of these provisions is that on every application under the 1975 Act the court must ask itself two questions: first, has reasonable financial provision been made for the applicant? Secondly, if not, what financial provision ought he or she to receive? But in answering those questions a distinction is to be made between the wife or husband of the deceased and any other applicant. In the former case, the provision referred to is such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not it is required for his or her maintenance; in the latter, it is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance, for which purpose it must be reasonably required for his or her maintenance; as to this last point, see Re Coventry, deceased  Ch. 461, 472 F G, per Oliver J.
It was established by the decisions of Oliver J and this court in Re Coventry, deceased that, on an application by an adult son of the deceased who is able to earn, and earns, his own living there must be some special circumstance, typically a moral obligation of the deceased towards him, before the first question can be determined in his favour. Although the decisions were in terms confined to the case of a son, the principle of them is applicable no less to the case of a daughter and, with developments in the structure of society, instances of its application in such cases may become more common. In that case Oliver J was of the opinion that financial provision was reasonably required for the applicant's maintenance. But his application failed because the deceased owed him no moral or other obligation and no other special circumstance was shown. The decision was affirmed by this court.
"In my judgment, the phrase, 'any obligations and responsibilities which the deceased had towards any applicant for an order' is not limited to obligations existing solely at the date of death, but is wide enough to include obligations and responsibilities arising in infancy which were not discharged. Alternatively, if I am wrong about that, weighing all the circumstances of the case and the conduct of the deceased towards the applicant I am, in my judgment, entitled to take into account the fact that, as I find, the deceased wholly failed to fulfill his financial and moral obligations towards the plaintiff during his minority."
Having referred to the legal and moral obligations which the act of procreation brings in its wake, and having observed that it was unnecessary for him to enter into the debate about moral obligations, the judge continued:
"I find as fact that the deceased failed in his legal obligations to the Plaintiff during his minority. In my judgment that failure renders the estate incapable of advancing the argument that this is a case where there is simply the relationship of father and son and accordingly that the latter has no claim. "
Thus the judge construed section 3(1)(d) so as to include legal obligations and responsibilities which the deceased had, but failed to discharge, during the child's minority, albeit that they were long spent and would have been incapable of founding a claim against him immediately before his death. In my respectful opinion that is an impossible construction of paragraph (d). While it is true that it requires regard to be had to obligations and responsibilities which the deceased "had", that cannot mean "had at any time in the past". At all events as a general rule, paragraph (d) can only refer to obligations and responsibilities which the deceased had immediately before his death. An Act intended to facilitate the making of reasonable financial provision cannot have been intended to revive defunct obligations and responsibilities as a basis for making it. Nor, if they do not fall within a specific provision such as paragraph (d), can they be prayed in aid under a general provision such as paragraph (g).
Alternatively, Mr. Leeming QC, for the plaintiff, submits that the deceased's failure to discharge his legal obligations and responsibilities at the time imposed a continuing moral obligation on him to make reasonable financial provision for the plaintiff on his death. While not wishing to exclude the possibility that the circumstances of another case might be such as to make that submission valid, I can see no such circumstances here. The only factor on which the plaintiff can rely is the relationship between the deceased and himself as father and son. Though some may think that that ought to be a sufficient basis for an order, the judge recognised, and Mr. Leeming accepts, that such has not been held to have been the intention of Parliament.
No other legal or moral obligation or special circumstances having been suggested, the judge was wrong to decide the first question in favour of the plaintiff. His error being one of law or of principle, it matters not which, this court can and must interfere with his decision. Although that is enough to dispose of this appeal in favour of the residuary legatees, I will also express my views on the second question, which was as fully argued as the first.
"(1) Viewed objectively and on the basis of the facts which I have found, the absence of provision for the Plaintiff in the deceased's will does not represent reasonable financial provision in all the circumstances of the case. It follows that the Plaintiff overcomes the first hurdle.
(2) It also follows, in my judgment, that he reasonably requires for his maintenance a contribution from the estate to his living expenses.
(3) I bear very much in mind the proposition that subject to the powers of the court under the Act, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases: see In re Coventry, (decd) at p. 474G H.
(4) Accordingly, in assessing the contribution which should be made to the maintenance of the Plaintiff I take the view that he reasonably requires an amount which will enable him to discharge or reduce the mortgage on his house. (5) At first blush such a finding would result in a payment of £50,000 from the deceased's estate. However, bearing in mind the matters which I have taken into account in paragraph (3) above, it does not seem to me on the facts of the case that I should exercise my discretion to award him any sum which exceeds the maximum provision which the deceased made for any other beneficiary.
(6) Accordingly, the award which I make in the exercise of my discretion under section 2 of the Act is £40,000. This, in my judgment, represents a proper contribution towards the Plaintiff's maintenance. It will enable him, if he chooses to apply the funds as I think he should substantially to reduce his mortgage debt and thus to help to secure the future of himself and his family."
On the assumption that it was right to make some order in favour of the plaintiff, Mr. Blair QC, for the residuary legatees, does not submit that it was not right for it to be made by way of a lump sum payment; nor does he submit that a sum of £40,000 was too much. His submission is that the plaintiff does not reasonably require any financial provision for his maintenance.
Although, as Browne Wilkinson J noted in Re Dennis, deceased  2 All ER 140, 145, the court has declined to define the word "maintenance", both Mr. Blair and Mr. Leeming are content that we should follow the guidance given by Goff LJ in Re Coventry, deceased  Ch., at p. 485 C D:
"What is proper maintenance must in all cases
depend upon all the facts and circumstances of the
particular case being considered at the time, but I think it is clear on the one hand that one must
not put too limited a meaning on it; it does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare."
In the judgment cited, Browne Wilkinson J emphasised, in my view correctly, that "maintenance" connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him; the provision to be made, albeit that it may be by way of a lump sum, being to meet recurring expenses of living of an income nature.
In the second of his conclusions, Mr. Justice Wall appeared to state that it followed from his answer to the first question that the plaintiff reasonably required for his maintenance a contribution from the estate to his living expenses. Mr. Leeming submits that the judge cannot have intended this apparent sequitur to be taken literally. The two questions are quite separate and the answer to the first is by no means determinative of the second. So I look elsewhere in the judgment to see from what else the judge's answer to the second question might have followed.
I have already recounted the judge's view that the two companies provided the plaintiff and his family with a comfortable standard of living, and that there was no evidence that he was likely to encounter financial difficulties in the future, providing he maintained his health and his capacity to work. I have also referred to the plaintiff's evidence as to what he did with his income and to the judge's view that his standard of living was not in any way extravagant or unreasonable. With that assessment I certainly agree. But I regret that I am unable to see on what basis the judge could have concluded that the plaintiff reasonably required further financial provision in order to maintain it.
In the fourth of his conclusions, the judge expressed the view that the plaintiff reasonably required an amount which would enable him to discharge or reduce the mortgage on his house. As to that, I repeat that the plaintiff said that he paid his mortgage and that the rest of his income went on general living expenses. He did not say that he could not pay his mortgage without further help. Mr. Leeming submits that it would be wrong to tie the purpose for which the provision was expressed to be awarded too closely to the need supposed. But even if that is so, the only need attributed to the plaintiff by the judge was an unspecified need for more substantial provision for his retirement which was not in any way related to the sum awarded.
On the evidence as a whole, taking account both of what it did and did not say, I cannot regard the single need identified by the judge as a sufficient basis for the conclusion that further financial provision is reasonably required for the plaintiff's maintenance. Certainly, in the words of Goff LJ, it may be regarded as reasonably desirable for his general benefit or welfare. But an award on that basis is impermissible. To adapt the words of Browne Wilkinson J, no further financial provision is necessary to enable the plaintiff to discharge the cost of his daily living at the standard appropriate to him.
The judge relied on the decision of Booth J in Re Callaghan, deceased  Fam 1, where an adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of £15,000 to enable him and his wife to avoid the burden of taking on a mortgage of £13,000 on the purchase of their council house at a most advantageous price, evidently under the right to buy provisions of the Housing Act. Mr. Justice Wall quoted a passage from Booth J's judgment beginning at P 7D:
"I have to look at the circumstances of this particular case, and, having done so, I am left in no doubt whatever that the effect of the deceased's intestacy is such that it is unreasonable inasmuch as it makes no financial provision for the plaintiff's needs."
"That is the order which the plaintiff seeks, because he wishes to buy this house without the burden of a mortgage weighing upon him for the remainder of his working years. In my judgment that is a reasonable requirement for his maintenance."
"The house has been valued at £25,000, but the plaintiff is entitled to 37 per cent. discount and has been given a purchase price of £13,250. To enable him to meet this, the local authority is prepared to give him a mortgage for £13,000 over a 20 year term. Nevertheless the decision to buy has been a difficult one for the plaintiff to make; without any capital behind him, he has been reluctant to commit himself to this expense. It will mean that he will have to service the mortgage for the remainder of his working life. But he has now decided to buy, regardless of the outcome of this application."
If that passage and the passage quoted by Mr. Justice Wall are put together, it is clear that Booth J thought that, notwithstanding the decision of the plaintiff and his wife to go ahead regardless, he had a need which enabled him to say that the provision was reasonably required for his maintenance. Here, I repeat, no real need has been demonstrated.
In the circumstances, although I acknowledge and affirm the reluctance of this court to interfere with a decision of a judge at first instance on a question of this kind, I am satisfied that Mr. Justice Wall's decision of the second question must have proceeded on an error of principle. On this ground also his order must be set aside.
As Mr. Blair said in opening the appeal, this is a poignant story which would arouse sympathy for the plaintiff in any but the hardest of hearts. But to allow the judge's order to stand would be to countenance a clear departure from the established principles which govern applications under the 1975 Act.
LORD JUSTICE HENRY: I agree with the judgment my Lord has given. Prior to the passing of the Inheritance (Provision for Family and Dependants) Act, 1975 there was no power in the Court to order financial provision to be made out of the estate of a deceased person for applicants such as Mr. Harlow that is to say a child of the deceased of full age, in good health, and not only economically self sufficient, but, as the judge found, "in reasonably comfortable financial circumstances". For a child of full age to have succeeded in an application under the predecessor Act to that of 1975 it would have been necessary to show that that child was incapable of maintaining himself through physical or mental disability. But the 1975 Act gave the Court wider powers to order financial provision to be made out of the estate for the deceased's children.
The history and legislative background of this Act are well summarised by Oliver J in his judgment in Re Coventry, deceased  Ch.461. The relevant principles for the purpose of this case being as follows: First, that though there are, as I said, under that Act powers now to order financial provision to those of full age in good health and economically self sufficient, those powers should be exercised by the court circumspectly and in relatively rare circumstances. Secondly, the emphasis of the provisions made under the Act is on the question of maintenance and the reasonable provision for maintenance, and where the person seeking maintenance is a child that sum must be required for his or her maintenance. Thirdly, that while the court should not approach applications from those of full age as casting any specially heavy burden on the applicants, that is subject, in the words of Oliver J, to the qualification that he "must as a practical matter necessarily exist when a person who applies to be maintained by somebody else is already capable of adequately maintaining himself." Fourth, that it is not the purpose of the 1975 Act to provide legacies or awards to the deserving. Fifthly, that the court has no carte blanche to reform the disposition of the deceased other than in the manner laid down by the Act. Sixthly, that beyond the mere fact of blood relationship there must be something as being a moral claim to be maintained or something of that kind for a claim to be made against the deceased estate.
1) Was the deceased's failure to make any provision for this applicant in his will a failure to make reasonable financial provision for his maintenance i.e. was it unreasonable to make no financial provision for him?
2) If it was, then should the Court make such a provision?
a) that he was bound by Section 3(1)(d) of the Act to "have regard to" the fact that the deceased had failed to perform his legal and moral duties as a father to the applicant during what the judge called his minority, roughly from soon after 1943 to 1960 or thereabouts.
Finding a) is a matter of statutory construction of Section 3 and the provisions that are set out in subsection (1) that the court shall have regard to in performance of its task. One of the matters that the Court is obliged to have regard to in determining both the issues of the judge identified is set out under "d) any obligations and responsibilities which the deceased had towards...[the] applicant". Such obligations and responsibilities are clearly constraints on the deceased's freedom of action to dispose of his property as he wishes. Such constraints are in the nature of duties, and may be legal or (see Re Coventry) moral. The learned judge rightly asked himself whether such obligations were limited to those existing at the date of death, or extended to include those arising in infancy and still undischarged. He held that the obligations under section 3(1)(d) need not exist at the time of death. In my judgment that was wrong as a matter of law. The deceased's freedom of action to dispose of his property must be judged at the time of death, and it is only his then current obligations and responsibilities that must be taken into account. Some undischarged responsibilities from the past may still be current for instance a child of the deceased might have given up a university place to nurse the deceased through his long last illness and now wish to go to take up that place. The moral obligation there would be both current and clear. But where the undischarged responsibility does not amount to an obligation present at the date of death, the statute does not require it to be taken into account.
I turn to the judge's alternative finding that he was entitled to take into account that the deceased had wholly failed to fulfil his financial and moral obligations towards the plaintiff over a period extending, as I have said, from soon after 1943 to 1960 or thereabouts. This (unsurprisingly given those dates) is not a situation where there was or could have been a finding that the deceased's parental shortcomings in the 1940's and 1950's had in any way adversely affected his son's economic situation and need for financial provision at the date of death. The purpose of the 1975 Act was well summarised by Oliver J in Re Coventry at p.474F where he said this:
"It seems to me, however, that in regarding the circumstances and in applying the guide lines set out in Section 3, it always has to be borne in mind that the Act, so far as it relates to applicants other than spouses, is an Act whose purpose is limited to the provision of reasonable
maintenance. It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court's powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases... In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown not that the deceased acted unreasonably, but that looked at objectively, his ... lack of disposition produces an unreasonable result in that it does not make any ... provision for the applicant and that means, in the case of an applicant other than a spouse for that applicant's maintenance."
So the Act is limited to situations where reasonable financial provision for the applicant's maintenance has not been made. In answering that question it is in my judgment simply irrelevant that this father behaved as he did however much this behaviour may be deplored. It is not the purpose of the 1975 act to punish or redress past bad or unfeeling parental behaviour where that behaviour does not still impinge on the applicant's present financial situation.
Accordingly I agree with my Lord that it was not unreasonable for the deceased to make no provision for his son's maintenance in this case. That would be sufficient to decide with this appeal, but it may be useful also to deal with the second issue, namely what if any financial provision the applicant required for his maintenance from the estate. That the provision must be "required" for the child of the deceased is made clear by comparing S. 1(2)(a) and S.1(2)(b) of the Act (and see Re Coventry at p. 472F). And you do not require as maintenance something which (in the words of Goff LJ in Re Coventry at p. 485C) "may be regarded as reasonably desirable for his general benefit or welfare". In my judgment on the figures in this case there was no requirement for maintenance for the applicant made out. The judge's findings that the applicant was "not merely self sufficient but in reasonably comfortable financial circumstances" and that his companies "provide the plaintiff and his family with a comfortable standard of living" and that "there is no evidence that the plaintiff is likely to encounter financial difficulties in the future providing he maintains his health and his capacity to work" should in my judgment have compelled him to conclude that no requirement for maintenance has been made out. Instead, with no explanation or further significant factual finding, the judge concluded "It also follows, in my judgment, that he reasonably requires for his maintenance a contribution from the estate to his living expenses." In my judgment the evidence simply was not there to permit such a finding, and the judge would not on the facts of this case as he had found them have had the power to redistribute this testators estate even had he been right in finding that it was unreasonable to make no provision.
SIR JOHN MAY: My Lord has set out in his judgment the facts of the case as they were found by the learned trial Judge and also the statutory provisions in the light of which those facts have to be considered. Mr. Leeming QC, for the Plaintiff, accepted both before the trial Judge and in this Court that in the case of an adult child the mere fact of the relationship of father and son is not of itself sufficient to require the deceased father to make financial provision from his estate for his (the child's) benefit if the latter is able bodied and capable of earning his living. On the facts found by the learned Judge the plaintiff certainly satisfied these last two criteria.
Thus the Plaintiff's application in the instant case sought to rely principally on section 3(1)(d) of the Inheritance (Provision for Family and Dependants) Act 1975. The argument was that the deceased's obligation to maintain his son, the Plaintiff, during infancy, which he had wholly failed to discharge, fell within that paragraph and was thus a matter to which the Judge had to have regard in determining whether and in what manner to exercise his powers under Sections 2 and 3 of the Act. The learned Judge said in his judgment below:
"The phrase any obligations and responsibilities which the deceased had towards any applicant for an order is not limited to obligations existing solely at the date of death, but is wide enough to include obligations and responsibilities arising in infancy which were not discharged. Alternatively, if I am wrong about that, weighing all the circumstances of the case and the conduct of the deceased towards the applicant I am, in my judgment, entitled to take into account the fact that as I find the deceased wholly failed to fulfil his financial and moral obligations towards the plaintiff during his minority".
With respect to the learned Judge I cannot so construe the paragraph. In my opinion one must consider the various matters listed in Section 3(1) of the Act only in so far as they are operative at the date of the deceased's death. For instance, if a father's failure to fulfil an obligation to his child whilst the former is alive results in a continuing disability, perhaps physical, perhaps psychiatric, which persists to the date of the deceased's death, then as a matter of construction such an obligation and the failure to comply with it would be matters to which the Court should have regard on an application for an order under Section 2 of the Act.
But where, as here, the father's failure to maintain his son, pursuant to his parental obligations, occurred not later than 1961 or 1962, and had no lasting effect after that time on the plaintiff, that obligation and the failure to comply with it some 28 years prior to the father's death in 1990 cannot, on a proper construction of the material paragraph in the Act be a matter which the Court is required by it to take into account. In my judgment the 1975 Act was passed "to make fresh provision for empowering the Court to make orders for the making... of the estate of a deceased person provision for the family or dependant of that person." It was not passed, in my opinion, to enable a Court, perhaps many years after the event, to make retrospective reparation to a person in respect of whom a deceased had failed years earlier, to comply with a legal or familial or moral obligation, where any effect of that failure had not continued up to the deceased's death.
Before this Court, Mr. Leeming secondly contended that if as a matter of construction he could not rely on Section 3(1)(d), there could be no similar objection to his reliance on paragraph (g) of the subsection. He submitted that the deceased's failure to maintain the Plaintiff during the latter's infancy was a matter which the court should in the circumstances of the case consider to be relevant.
In my judgment, this further contention on the Plaintiff's behalf must also fail. I think that the temporal limitation which must as a matter of construction be placed upon paragraph (d) of the subsection must also apply to the matters referred to in paragraph (g). On an application under Section 2 which ex hypothesi is made on and after the death of the material deceased person, the Court may in my opinion only consider the factual situation as at the date of death.
In any event if, as I think, the deceased's failure to maintain his son, the Plaintiff, was not a matter within the proper scope of Section 3(1)(d), then I find it difficult to conclude that it can be said to have been relevant within paragraph (g).
I also have had the opportunity of reading in advance my Lord's judgment on the second issue which arises in this appeal. Although we are differing from the learned Judge below, I agree with my Lords reasons for allowing this appeal on that second issue. I do not think I need to add anything on my own account. Nevertheless, I do feel it appropriate to endorse the expression of sympathy for the plaintiff which fell from my Lord. But however much one may feel for the plaintiff in the circumstances of this case I agree that as a matter of law and for the reasons I have given this appeal should be allowed.
LORD JUSTICE NOURSE: Mr. Blair all we will do today is to allow the appeal. We will discharge the judge's order for payment of the sum of £40,000 to be paid to the plaintiff out of the capital of the deceased in that estate and we will dismiss the plaintiff's application, all other matters being reserved for future agreement or mention at some convenient date next term if necessary.
MR. BLAIR: My Lord, only one other matter it occurs to me would your Lordships feel that a quorum of two of your Lordships were sufficient if there were any dispute as to costs or leave.
LORD JUSTICE NOURSE: Well, I would think that is entirely a matter .
MR. BLAIR: If we agree, your Lordships I do not know if my learned friend, I know how difficult it is to reconvene a court of this kind obviously.
LORD JUSTICE NOURSE: It is entirely up to you, Mr. Blair. I think you have to file a consent pursuant to that provision of the Supreme Court Act.