England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Civil Justice Centre The Priory Courts 33 Bull Street Birmingham B4 6DS
		15th December 2010

JUDGE PURLE, QC:

1. These are claims by Julie Hope ("Julie") and Laura Hope ("Laura") against the estate of Michael John Hope ("Michael"), who died on 8^th January 2009. Julie was, at the date of his death, Michael's wife, although they had been separated for the best part of twenty years. Laura is his daughter, now aged 28. By this claim they seek reasonable financial provision under the Inheritance (Provisions for Family and Dependants) Act 1975 ("the 1975 Act"). The Defendant ("Christina") is the executrix and sole beneficiary under Michael's will dated 20^th December 2008. She was the longstanding partner of Michael. There is an issue as to when the relationship started but it is clear that it had lasted for at least twenty years and probably more.
2. The marriage had been a lengthy marriage (Julie and Michael were married in June 1978) and Laura was born in 1982. Julie – and I hope that people will forgive me for using first names – had been a hardworking wife who had worked as a secretary and also brought up Laura until she separated from Michael in 1991. A written separation agreement was entered into on 31^st May 1991. Julie carried on looking after Laura thereafter. She also until the separation contributed to the wellbeing of the family home, supervising improvements to properties and the like. She now owns and lives in a 2-bedroomed property with Laura, which has a mortgage. As at 20^th November 2009, the balance owing was something under £6,000, due to be paid off by instalments by the end of October 2011.
3. Under section 1(1) of the 1975 Act, both a spouse and a child have standing to make an application for reasonable financial provision. In the case of a wife, financial provision under subsection (2)(a) of section 1 means such financial provision as it would be reasonable in all the circumstances of the case for a wife to receive whether or not that provision is required for her maintenance. So far as a child is concerned, financial provision under subsection (2)(b) of section 1 means such financial provision as it would be reasonable in all the circumstances of the case for the child to receive for that child's maintenance.
4. The court, under section 2(1), has first to be satisfied that the disposition of the deceased's estate under his will (or the law relating to intestacy where that applies) is not such as to make reasonable financial provision for the applicant. There are then a number of orders that can be made.
5. The court, in considering both whether reasonable financial provision has been made and in determining whether and, if so, how to exercise its powers, has to have regard to a wide ranging number of matters under section 3(1) (a) to (g) inclusive. Additionally, under subsection (2) of that section, in the case of an application by, amongst others, a wife, the court has to have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage instead of being terminated by death had been terminated by a decree of divorce.
6. In the case of a claim by an adult child, as Laura is, Goff LJ in the well known case of Re Coventry (Deceased) 1981] Ch 461) had this to say at page 485 C - D:

"What is proper maintenance must in all cases depend on 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 is reasonably desirable for his general benefit or welfare."

As I have said, reasonable maintenance is the standard applicable to Laura, though there is no such limitation in the case of Julie who brings her claim as a wife.

7. Oliver J, as he then was, at first instance in the same case, and whose judgment was upheld on appeal, also made the following observations at page 475 C:

"It cannot be enough to say, 'Here is the son of the deceased.'" - and I interpose to say that the same applies to daughters - "'He is in necessitous circumstances. There is property of the deceased which could be made available to assist him but which is not available if the deceased's disposition is to stand. Therefore, those dispositions do not make reasonable provision for the Applicant.' There must, as it seems to me, be established some sort of moral claim by the Applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that in the circumstances it is unreasonable that no or no greater provision was in fact made."

8. That approach, which has now stood the test of time, inevitably makes it difficult for many adult children to bring successful claims under the 1975 Act, though in Re Hancock (Deceased) [1998] 2 FLR 346 the Court of Appeal said that an adult child did not necessarily have to show the deceased owed a moral obligation or that there were other special circumstances. The Court of Appeal, nonetheless, recognised that a claim made by an adult with an established earning capacity might, in fact, very well fail in the absence of such factors. That case also established, as I think was not seriously in dispute before me, that the court has to consider the facts at the date of the hearing. The evidence before me, therefore, focused (though not exclusively) upon the current position. Further, in deciding whether or not the disposition of Michael's estate made reasonable provision for Julie or Laura, I am not exercising a discretion, as Hancock confirms, but making a value judgment after balancing the relevant matters set out in section 3(1) of the Act.
9. There is one other factor which is particularly pertinent in the present case. Michael and Julie entered into the separation agreement in 1991 under which substantial assets by way of capital provision were acquired for or transferred or paid to Julie, representing arithmetically a sum in excess of £116,000, over half of the joint assets of the parties as declared for the purpose of that exercise. I use those last words because it also appears and was known to Julie at the time that there was £108,000 or thereabouts in a bank account in the Isle of Man under the control of Michael. That was not taken into account on the division of assets that occurred in 1991. On the contrary, Michael procured Julie to sign a document ("the side document"), though she had no independent legal advice for this purpose, excluding the consideration of those monies for the purpose of the 1991 separation agreement. By contrast, both Michael and Julie were independently advised in relation to the 1991 settlement agreement itself. The side document, excluding consideration of the £108,000, almost certainly could not have stood (assuming the monies to have been Michael's) had it been timeously challenged.
10. Leaving that aside for the moment, it is clear from contemporaneous solicitors' correspondence that Michael was being invited to enter into the 1991 separation agreement upon the footing that it represented a clean break so far as financial claims to capital were concerned. He was also to pay £100 per month as maintenance for Laura. That obviously could have gone up but it never, in fact, did throughout the period until Laura attained her majority in 2000, though thereafter Michael increased the amount to £105 per month until 2007, when he purchased a car for her and the payments ceased. So far as capital provision for Julie was concerned, however, the expectation seems clearly to have been that the 1991 separation agreement (though not in terms expressed to be in full and final settlement) would draw a line under proceedings.
11. The parties did not proceed to a divorce and it may well be that Michael did not initially wish to provoke a divorce or consent to one because that might have led to increased claims. As I have said, the £108,000 in the Isle of Man was discovered by Julie before the 1991 separation agreement and the evidence is that Michael reacted very strongly, indeed threateningly, and insisted that the Isle on Man monies be kept out of account. It appears from documentation that has since become available from the Isle of Man that the money, notionally belonging to a company, was at the free disposal of Michael who was identified in the papers held by the Isle of Man nominees as the beneficial owner of the company. So far as Christina is concerned, she seemed to know very little about it, though she was able to confirm in evidence that when, some time later, the money was collected from the Isle of Man it was withdrawn from the bank by Michael in a suitcase in cash. So the strong suspicion must be that this was Michael's money beneficially. Therefore, had there been any further claim made by Julie within a reasonable time of her being freed from the threat of violence that she perceived at the time, it is likely that Michael would have had great difficulty, on the evidence as it now appears, in answering the claim.
12. However, there is also evidence that within two years or so of the 1991 separation agreement Julie took independent legal advice on the Isle of Man money. She decided not to take matters any further. It was difficult on the known assets and means of Michael to see where a sum of that magnitude may have come from lawfully. Had Julie rocked the boat she was advised that this might reveal some unlawfulness which would put the availability of that money in doubt. Be that as it may, Julie, who then not only had independent legal advice but was free of any influence of Michael, did not make a claim based upon the inadequate formal disclosure of assets for the purpose of the 1991 separation agreement. Moreover, she did not make any claim thereafter until after Michael's death.
13. That gives rise to a real problem. Michael is not around to explain this money. There are suggestions in the evidence that he may have been fronting in whole or in part for others but the truth will never be known. The available evidence, such as it is, strongly suggests that Michael left what were in truth his monies deliberately out of account. However, by virtue of his untimely death, that issue cannot be pursued fairly or to a just conclusion.
14. It is well settled that among the many circumstances of the case that the court can take into account, whether under the Matrimonial Causes legislation or under the 1975 Act, is delay in asserting a claim that could have been asserted earlier. It seems to me that, so far as any capital provision is concerned, in the case of Julie, her conscious decision not to make before Michael's death any claim, despite knowing all along of the Isle of Man money, makes it unjust that she should now seek a capital adjustment nineteen years after the separation agreement when Michael is not around to give such explanations as may be available.
15. One is familiar with encountering very bleak facts which show little hope of being overcome, such as the clear evidence in this case of beneficial ownership on the part of Michael of the Isle of Man money, but one is also aware of cases (albeit unusual) where those bleak prospects have been overcome. Whether they could have been overcome in this case can never be tested, as Michael was never required during his lifetime to give a proper explanation.
16. It seems to me also that Michael must throughout the last decade or so at least of his life have proceeded on the assumption that the risk of a further claim being made over and above the 1991 separation agreement was so remote that he could safely ignore it.
17. There is evidence that at the time of the 1991 separation agreement he was in relatively highly paid employment. He was however subsequently made redundant and, though acting as a consultant for 3 years, he concentrated thereafter on quality of life rather than the pursuit of wealth, engaging, with Christina's help, in buying and renovating properties for their own use and subsequent resale. It seems to me that he must have adopted that chosen lifestyle, which still left him comfortably off, in the reasonable expectation that he was free of all claims for further capital provision in respect of a marriage which was, for all practical purposes, long since over, though not formally dissolved.
18. Rossi v Rossi, [2007] 1 FLR 790, a decision of Mr. Nicholas Mostyn QC, as he then was, confirms that delay is a factor which diminishes if not eliminates any claim to matrimonial provision. The position it seems to me is a fortiori, if I am still allowed to use that expression, where, as here, Michael is no longer around to explain matters which, though they look unpromising, may conceivably be capable of explanation. At all events, I simply do not know what has now become of the Isle of Man money. I know it came out of the Isle of Man in a suitcase but I do not know to what extent, if at all, it has filtered through into the wealth, such as it is, that Michael left behind. It would be wrong of me to infer that there remain today undisclosed assets available to Michael's estate, and no-one has invited me to do so.
19. I should also say that it is clear from the authorities which Mr. Mostyn QC reviewed in Rossi v Rossi that the significance of delay is not limited to a case of delay following a divorce but applies also to cases of delay following separation. Some of the cases are, I am told, old by the standards of the family division but it is clear from Rossi itself that they are still good law. In particular, the case of Foster v Foster [1977] FLR 112, which I would not regard as particularly old, was a case of separation. Irrespective of age, the same doctrine of precedent applies to family cases as in other jurisdictions. In any event, the relevance of lifetime delay in bringing a matrimonial claim in the context of the 1975 Act is established by Re Rowlands (Deceased) [1984] FLR 813..
20. In the present case, Julie took the opportunity very sensibly and laudably to re-qualify as a teacher some years after her separation. This naturally put strains on her finances and she sold the property she was then living in and downsized to a smaller 2-bedroomed property where she now lives with Laura. At no time, however, during that process did she make any further financial claim against Michael.
21. It seems to me in the circumstances that the claim for further capital provision would have stood little chance of success if bought in the matrimonial courts. Further, following Michael's death the jurisdiction under the 1975 Act is seriously undermined because, having regard to the delay, even when I take into account, as I will do, all the other factors which are set out in section 3, it is impossible to say, looked at objectively, that it was unreasonable of Michael, all those years down the line when he came to make his will, to make no further capital provision for Julie. The position was no different at the date of his death, which followed not long after his will, or at the date of the hearing before me.
22. That is not necessarily an end of the matter so far as Julie is concerned. Although, as I have said, the contemporaneous correspondence suggested that there was to be a clean break so far as capital was concerned, that same correspondence also left open the right to come back in the event of maintenance being needed for Julie. The capital provision that was made for her in 1991 was meant to embrace both her capital claims and to remove the need for continuing maintenance so far as she, rather than Laura, was concerned but it was recognised that things might change as regards Julie's need for maintenance..
23. It is, therefore, legitimate still to ask whether or not reasonable provision has been made for Julie's maintenance. Even though the power to make provision under the 1975 Act is, in the case of a wife, not limited to mere maintenance, it includes maintenance as well. Her need for maintenance is therefore something that needs to be looked at in the light of the size of the estate, all other claims against the estate and the reasonable needs and requirements of those people as well as against the background of delay.
24. Delay is still a powerful factor because, just as I consider that Michael must have justifiably thought himself free of further capital claims, so also he must have reached the view that he was free of further maintenance claims, none having materialised since 1991. He could, at least prima facie, reasonably assume that Julie was and remained capable of providing for her own maintenance, which is what she had done over many years since the separation.
25. I should also consider the position of the various other parties having a claim against the estate, and the available resources both of the estate and those other parties, as well as Julie's resources. In Laura's case, I also have to consider her mental disabilities, as she is said to be a vulnerable adult, having special needs.
26. I should in this connection say something about the quality of the evidence. I heard evidence from each of Julie and Laura, as well as from Christina and other family members and associates. I did not gain the impression that any of the witnesses were telling me anything other than what they perceived to be the truth. That does not mean that there were not differences between the witnesses but the differences were largely differences of impression and more likely to be the result of misunderstanding rather than one witness telling the truth where the other witness was not.
27. An example is evidence given for Julie and Laura suggesting that Christina would encourage Michael to cut them off, especially Laura, in the event of chance meetings. Their perception was that this was something which Christina put Michael up to. That was denied by Christina and I accept that denial. But it is still, nonetheless, the impression that Julie and Laura, as well as Michael's sister (who also gave evidence), genuinely formed from the encounters they had. There may be a number of explanations for that. One explanation which seemed likely to me to was that Michael, who everyone agreed was a very private person, tried to run his life so that Christina was kept wholly apart from his former life involving Julie and Laura. That may have resulted in an apparently negative reaction which was in no way down to Christina's encouragement.
28. Likewise, on Christina's side, she was under the impression that Laura really had very little to do with her father and was somewhat uncaring. I have no doubt that that was the impression she gained but I do not think it was a fair one. It is correct that Laura, who lived some distance away from Michael, did not see him as much as a child might. She is not the first child to fall into that category. But she was undoubtedly caring and remained in touch with him, usually by mobile telephone, though the contact diminished towards the end of his life, when Michael was ill and confined to bed, because of the unavailability of a mobile 'phone signal inside the house where he lived. I do not think that this denotes any lack of caring on Laura's part. There was ample other evidence that Michael was disinclined to receive visitors in his worsening physical state.
29. Christina did give some evidence that Michael was upset that Laura had not thanked him properly for a car he bought her in 2007 but Laura's evidence, which I accept, was that she did to go to see him shortly after the car was bought and thanked him for it. It may be that the thanks were not as fulsome as Michael might have expected; it may be that the conversation about which Christina gave evidence took place before the visit in question. Whatever the reason, I have no doubt that this was at worst another misunderstanding which, as in the case of other misunderstandings, does not assist me overmuch in determining the rights and wrongs of the case.
30. I turn now to consider the parties' financial positions.
31. So far as Julie is concerned, the evidence shows that at the date of the hearing before me she had, between February and July 2010, net earnings as a supply teacher of £8,990 in round figures. That is omitting the three pence which comes in for arithmetical accuracy. That is the figure as calculated by Mr. Burden, who appeared for Christina, adjusting a figure which was put forward by Miss Jones on the other side to eliminate a student loan which Julie is repaying. The reason why it is appropriate to eliminate this loan is because the loan repayments are taken into account in the calculation of Julie's outgoings and, therefore, they needed to come out of one place or the other to avoid double counting. That was the position between February and July 2010. If one takes that rate and carries it forward over a 33 week teaching year, that comes out at just under £14,000.
32. It is not known exactly how much work Julie will get in the future. She has also received a small additional income in the past for marking exam scripts and the school year is, in fact, somewhat longer than 33 weeks, which is the number of weeks that she worked previously. However, looking to the future, on the footing that she works, say, 35 weeks per year, it seemed not unreasonable, as Mr. Burden demonstrated, to assume that gross she could earn something in the order of £21,500 per year. She is in good health though work is not easy to get.
33. So far as her outgoings are concerned, they presently come to just over £1500 per month. She also has 2 small pensions totalling approximately £100 (net) per month and the prospect of further pensions on retirement which (aggregated with the other 2) will total approximately £550. It does not seem that she is likely in the immediate future to be out of pocket, and her present lifestyle, though not lavish, is comfortable enough, and in line with the lifestyle she has come to adopt over the years since her separation. Included in her outgoings is a monthly mortgage instalment of £236.74 which will be repaid within the next year, so that her outgoings will then reduce. Additionally, a student loan and an HSBC flexi-loan (cumulatively totalling £243.25. per month) will be repaid by the time she retires. This is assuming she retires at 63 years and 9 months which I was told by Miss Jones was the age at which she will become entitled to a full state pension. In fact, I was under the impression from her evidence that she would not necessarily retire at that age at all. If she did so, she would prospectively be out of pocket on prospective outgoings to the tune of around £350 per month . She will however have an unencumbered property worth (on current values) in the order of £120,000. She is now 57.
34. I have to take into account the position of Laura as well, who, now aged 28, presently lives with Julie. As long as that remains the case, she will contribute (as she has done hitherto) to the outgoings. She also has a claim of her own, which I will return to later in this judgment.
35. I also have to take into account the position of Christina, who formerly earned very little from a gardening business and now has some rental income (variable) and pensions totalling (depending on the rent figure) between £500 and £725 per month, but has monthly outgoings of something approaching £1000. She also has a desire to stay in the home that she has been left. She is now aged 55. It is possible that she could earn more from gardening, but the work is seasonal and, as in Julie's case, dependent on demand. At the time of Michael's illness and death, she was caring for him full time, which prevented her from working. She did have capital of her own in the past, but this was invested in part on buying necessary cars, living expenses and renovations to Michael's properties, and in part on her rental property (which is subject to an assured shorthold tenancy and a mortgage of £110,000). The equity of redemption relating to the rental property is worth approximately £35,000. Under the terms of the mortgage, she cannot live there herself or rent it out to family members.
36. Michael's estate, I should say, before inheritance tax came out at something like £800,000 of which the largest single item was his Devonshire home, known as 'The Mallards', which was left along with the rest of the estate to Christina. This property had a probate valuation of £450,000. There were some small liabilities and, in addition, an inheritance tax liability, such that the available estate is now, on the figures put before me, £563,845. There is also a prospective liability for costs so that the likely estate - but only on the assumption that all costs come out of the estate, which I am not deciding at this stage - could be as low as £500,000.
37. That, of course, is a King's ransom so far as Julie and Laura are concerned but the objective of the 1975 Act is not to enhance someone's wealth on the grounds of merit but to make reasonable financial provision for them, as to which the size of the estate is of significance, but not the only factor. Although it is a King's ransom to them relatively speaking, it is still not a vast sum when one takes out the value of the property. It is the property where Christina lived with Michael, which she helped to renovate and in which she wishes to continue to live. She has no guarantee of that but I do not consider that it was unreasonable of Michael to adopt as his starting point the wish to preserve that property for Christina's use and occupation. Even if sold, it would be reasonable to expect Christina to purchase another suitable property. This is not, therefore, a case where there is an abundance of money which can go round everybody and keep everyone happy. It is a limited, though comfortable, estate.
38. I turn to consider in a little more detail the position of Laura. She has had great difficulties in the past as a child. She had learning difficulties but she came through them, and completed her education, though not with illustrious success. It seems unlikely that she will ever be a high earner. On the payslips that were disclosed at the trial she has recently been earning on average just under £8000 per annum net. That is based on an average of all the payslips. It is slightly less if one takes the last payslips, as Ms Kasasian did initially, under which it came out to a figure just in excess of £7,600. In addition, as a result of Michael's death, she now receives a pension of £188.81 per month net. Her net monthly income (on Mr Burden's figures) is just in excess of £850. Her actual outgoings are something in the order of £703 per month. As things stand, then, she is not just getting by but her income is comfortably exceeding her outgoings. The surplus is smaller on Ms Kasasian's figures, but still a surplus.
39. She lives with Julie. She feels that she will be able to move out when she is feeling stronger. The impression she gave me was that this was something she aspired to, so long as she could afford it. I have seen her in the witness box. She is a resourceful young lady. She clearly has had and continues to have difficulties in that she suffers from time to time from depression and an obsessive compulsive disorder. She had several months of illness which seriously affected her following Michael's death, keeping her away from his memorial service. There is however no reason to suppose that she will not remain capable of working, although she is unlikely to become a high earner. In addition, she stands to inherit, again as a result of Michael's death, the sum of £45,000 from her (now deceased) paternal grandmother. I say this is as a result of Michael's death because, had he not died when he did, the money would not have gone to her but to him. She presently works 30 hours a week and there is every expectation, though no certainty, that she could work more hours as a care worker. She is clearly a caring young lady and she is to be congratulated for having made of her life what she has.
40. She has, however, not been particularly generously treated by Michael in the past. The monthly income of £100 maintenance that was paid under the 1991 separation agreement never increased during her minority, though she also received presents from time to time. When she attained her majority the monthly payment was increased, though not by much, to the slightly less miserly sum of £105 per month. Nonetheless, she did receive that support and, more significantly, was bought a car in 2007 which seems (on the evidence) to have helped both her self confidence and her employment prospects. She was not being maintained by Michael when he died. The monthly payments ceased when the car was bought. The cost of the car was said in evidence to be £5,000.
41. It appears also from the evidence that Laura has been able to lend Julie money from time to time when Julie has needed it, although that may simply be her way of contributing to the outgoings – it is not entirely clear. Between them, so long as they live together, they seem to be more than getting by. I acknowledge that Laura has an aspiration to live in her own place, but that is only likely to come about if her financial position improves significantly. It is not the object of the 1975 Act to bring about such an improvement. A parent is under no general obligation to house an adult child and does not come under one at death.
42. I also mention that in Julie's case she has borrowed money from her own mother who is supportive. She also is likely at some stage to inherit from her mother, along with four other children. This is likely to produce for her a capital sum of something in the order (on current values) of £50,000. That is a small point but it is, nonetheless, one to be taken into account. Any inheritance has the potential to help her in her retirement.
43. Looking at all those factors, I do consider that Michael was entitled to take the view and reasonably took the view that his obligations towards Julie had more than been satisfied by the capital provision that he had made in the past and that he could proceed upon the basis that he was free of all claims, whether for capital or maintenance and, in particular, that it was reasonable for him to provide for Christina to the exclusion of Julie (including leaving her the home in which they lived). His relationship with Christina had endured for a considerable amount of time and was still enduring. Christina told me (and I accept) that he intended latterly to get divorced and remarry her, but this plan was thwarted by his terminal illness. He had not made in her favour any capital distribution of the kind that Julie had had in the past, and Christina had contributed to the establishment and running of the home in which she and Michael lived, and to the renovation of a series of properties previously. In short, judged at the date of the hearing before me, the will has not, in Julie's case, produced in my judgment an unreasonable result.
44. It also seems to me that, whilst many, including, I suspect, myself, would have been more generous towards a daughter in the position of Laura, it cannot be said that the lack of provision made for her by the will has produced an unreasonable result. As it happens, Michael's death has triggered a pension of £2,000 a year for her life and has also resulted in the bequest from the grandmother which would otherwise not have gone to her. Whilst she suffers from some infirmities, they are not overwhelmingly debilitating, and she has coped well to date in her chosen career as a carer. Her earning capacity, coupled with her other resources, is sufficient for her needs, and is likely to increase, though it will never be large. I do not consider that her moral claims are sufficient to diminish the claims of Christina, which seem to me in the circumstances to be greater.
45. With some misgivings, therefore, I dismiss both Family Provision claims.