England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Civil Justice Centre Priory Courts Bull Street Birmingham
		12th March 2010

Friday 12th March 2010

MR JUSTICE KITCHIN:

1. This is a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act"). The claimant, Susan Moore, was born on 6 July 1955 and seeks reasonable provision from the estate of her late husband, Ian Moore, who died on 11 January 2008.
2. Ian and Susan Moore were married on 22 January 1977 and lived together for some 30 years at 25 Granby Close, Redditch in Worcestershire. They had no children. The property was originally in their joint names because, as Susan has explained in her evidence, they pooled their resources and shared everything. In December 2004, Ian and Susan severed the joint tenancy for reasons I shall explain.
3. About seven years ago Susan fell ill with multiple sclerosis and, at least initially, the disease was particularly aggressive. After a time she became confined to a wheelchair and the movement in her hands became extremely restricted. She was, therefore, heavily dependent upon the care that Ian was able to provide.
4. Unfortunately, and, indeed, from a time before Susan contracted multiple sclerosis, Ian had developed lung disease. This was clearly very debilitating and over time his breathing began to deteriorate. The effect of his illness and the strain of looking after Susan evidently left him exhausted.
5. Early in January 2008, Ian was admitted to hospital and within a week he had died. Upon Ian's admission to hospital Susan, being unable to look after herself in the property, moved into residential care where she has remained.
6. The first defendant, Stuart Holdsworth, and his wife, the second defendant, Patricia Holdsworth, are Ian's personal representatives and were granted probate of his estate on 19 February 2008. Patricia is Susan's sister. Both Stuart and Patricia take an entirely neutral stance in this litigation.
7. On 11 November 2007, Ian made the will which has given rise to this claim. Under the terms of the will, Ian left his half share in the property, which has been valued at about £62,500, to the third defendant Steven Haines, as to 50%, the fourth defendant, Paul Moore, as to 25%, and the fifth defendant, Tracy Hussey, as to the remaining 25%. Steven was a good friend to Ian and to Susan and they decided they would like to include him in their wills. Paul and Tracy were Ian's nephew and niece respectively.
8. Under the terms of the will, about £30,000 is therefore due to Steven and about £15,000 to each of Paul and Tracy. The residue of the estate, amounting to approximately £40,000, passes to Susan.
9. In these proceedings it is Susan's case that the will was not such as to make reasonable financial provision for her and she seeks the entirety of Ian's estate.
10. Susan explains in her first witness statement that, in 2004, she and Ian decided that, due to her illness, there was a possibility that she would end up needing long-term residential care. If Ian predeceased her there was a risk that the whole value of the property, the largest asset they had acquired in their lives together, might be dissipated in fees and expenses. For this reason they severed the joint tenancy and agreed that Ian's share of the property would be retained by his estate, but Susan would be allowed to live in the property for the rest of her life free of charge.
11. As I have said, Ian and Susan did not have children. However, Ian did have his nephew and niece, Paul and Tracy. Susan has two surviving sisters, Patricia and Jacqueline Parker, and a niece, Laura, who is Patricia's daughter. Accordingly, Ian made a will leaving a life interest in his interest in the property to Susan and in default to Laura, Jacqueline, Paul and Tracy in equal shares, and the residue to Susan, or, if the gift to Susan failed, again to Laura, Jacqueline, Paul and Tracy in equal shares. Susan made a will in like terms.
12. In 2007, Ian and Susan decided to change their wills, according to Susan for two reasons. First, Anthony Moore, one of the executors and Ian's brother, had died, and he was replaced as executor by Patricia's husband, Stuart. Second, Susan says - but I should say that Tracy disputes - that Ian was not happy with the fact that Paul and Tracy, though living relatively close, rarely saw him. Be that as it may, some years earlier Ian had become friends with Steven who lived nearby. Ian liked him a great deal and Ian had been kind to both Ian and Susan, and Ian and Susan therefore decided to include Steven in their new wills. To accommodate this change they decided to reduce the proportion given to Paul and Tracy and to give the balance of their share to Steven. The provision for Jacqueline and Laura was to remain unaltered.
13. Susan maintains that she and Ian therefore altered their wills and she believes that Ian wanted his will to be in the same terms as hers. Susan's will gives the residue to Ian absolutely and, in default, 25% goes to Steven, 25% is divided between Paul and Tracy, 25% goes to Laura and 25% goes to Jacqueline. However, Ian's will is, as I have explained, different. This, says Susan, is entirely contrary to what she and Ian intended, namely that she should be allowed to live in the property for the rest of her life.
14. Susan's concerns in bringing this claim are expressed by her in her evidence as follows, and they fall under three headings: property, welfare and her own will.
15. First, the property has, she says, been her home for 30 years and she wants to return there. She has been away from it for too long. She continues that the local authority would like her to return home and will do everything they can to support her in doing so. Indeed, she says that her social worker has stated that clients of hers with more severe disabilities live independently, having been provided with the correct support and care package. The difficulty that Susan has, however, is this. The property needs alteration and unless and until it is altered it is not safe for her to return home. She says the local authority will fund this alteration, but only once this claim is resolved, because they do not know whether the property is going to have to be sold in accordance with the terms of Ian's will. Further, until the local authority has assessed what alterations need to be made they cannot guarantee she will return home. Susan says she will, however, return home if it is safe and feasible for her to do so and she has been given an assurance (if not a guarantee) by the local authority that it will be.
16. As for welfare, Susan says that, because of her illness, the cost of normal everyday activities is almost prohibitive. The joint capital that she and Ian accumulated was to provide them both with the means to live a full and active retirement, despite their illnesses and, indeed, they had obtained passports with a view to embarking upon a cruise. If she were to go on a cruise or other holiday, which she would like to do, she would need to take somebody with her and pay for that person and she does not consider it fair that she may be prevented or restricted from taking that course. She believes there can be no doubt that Ian would wish her to have as full a life as possible, but now even a simple shopping trip requires her to take a full-time carer and make appropriate payments.
17. So far as money is concerned, her position at present is as follows. Her fees are met entirely by the local authority. They amount to £880 per week. Once this claim is resolved, any funds she has above £22,500 will be used by the local authority to pay her fees and expenses. When her assets reach £22,500, the local authority will resume underwriting the cost of care, taking a reduced contribution down to a threshold of £13,000.
18. As for her will, she is concerned that if she ends up living in residential care then she will have no ability to leave her estate to whom she wishes. She reaches this conclusion because she believes her estate will likely be completely exhausted in care fees to the extent that the beneficiaries will, at the most, be able to benefit from a share of £13,000. She says that Paul, Tracy and Steven share a larger amount from Ian's estate under the terms of his will and she does not think that is fair.
19. Steven, Paul and Tracy's position can be put quite shortly. They say that if evidence were brought forward confirming that it is viable for Susan to return to the property and to live there with the assistance of appropriate carers and other outside agencies, they would not seek to suggest that Ian's interest in the property bequeathed to them under the terms of his will should take any precedence over Susan's accommodation needs. In other words, they would be content for Susan to return to and occupy the property for as long as she wishes, and that only thereafter should the property be sold and the appropriate share of the proceeds distributed between them. They also express the view that a return to the property by Susan is not a viable proposition. Nevertheless, in a witness statement dated 26 October 2009, Tracy stated on behalf of herself and Steven and Paul that they did not propose to take any further active part in this claim, nor would they seek to give evidence at the trial. In the event, Steven and Tracy have attended and have confirmed to me the substance of their position as I have related it. They do not oppose in any way Susan's return to live in the property, if that is possible.
20. There is no doubt that, under the Act, Susan may apply to this court for an order on the ground that the disposition of Ian's estate effected by his will is not such as to make reasonable financial provision for her. Reasonable financial provision in this context means such financial provision as it would be reasonable in all the circumstances of the case for her to receive, whether or not that provision is required for her maintenance.
21. In exercising its power to make an order under the Act, the court must have regard to the various matters set forth in section 3. So far as relevant, they read as follows:

"(1) 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 powers 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.

(2) This subsection applies, without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(a) or 1(1)(b) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—

(a) the age of the applicant and the duration of the marriage …;

(b) the contribution made by the applicant to the welfare of the family

of the deceased, including any contribution made by looking after the home or caring for the family;

… In the case of an application by the wife or husband of the deceased, the court shall also ….. 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 divorce order."

22. I must now consider the application of these criteria in the context of the present case and at the outset and pursuant to section 3(2), have regard to the facts that Susan is only 54 years old, that she and Ian were married in 1977, and that they made an equal contribution to their home and family lives.

section 3(1)(a)

23. I am conscious that Susan is entirely dependent on state benefits. Her income consists of disability living allowance of £196.40 every four weeks and incapacity benefit of £359.20 every four weeks, and that her care and accommodation expenses are currently met by the state. I must also have regard to the fact that she has been given the residue of Ian's estate, amounting to £40,000. Further, Susan, of course, owns her own 50% share in the property. I will return to her financial needs.

section 3(1)(b)

24. There is no other applicant, nor is there likely to be one.

section 3(1)(c)

25. This requires me to have regard to the financial resources and financial needs of any beneficiary of the estate. In this regard Steven, Paul and Tracy have provided little or no detailed information as to their means and I propose to proceed on the basis that they are independent, self-supporting adults.

section 3(1)(d)

26. This requires me to consider first, the responsibilities and obligations which Ian had towards Susan. I have no doubt that in the light of their long lives together and the care that they each provided the one to the other, Ian owed Susan a significant obligation and responsibility and it is one which I have no doubt that he recognized.
27. As for Paul and Tracy, they knew Ian for the whole of their lives, he being their uncle, and Steven was, as Tracy has described, a treasured friend and confidant of Ian for some twelve years. However, overwhelmingly, in my judgment, Ian had a responsibility towards Susan arising from her illness and their long and happy married life together.

section 3(1)(e)

28. I am required to have regard to the size and nature of the net estate. As I have indicated, this is approximately £103,000 and of this Susan will receive £40,000 in any event under the terms of Ian's will. The rest of the estate comprises Ian's interest in the property.

section 3(1)(f)

29. This requires me to have regard to any physical or mental disability of Susan, Steven, Paul and Tracy. Once again, here the matter which plainly, to my mind, overrides anything else is Susan's illness. In that regard I note that, despite Susan's immobility, her intellect remains unaffected.

section 3(1)(g)

30. This requires me to have regard to any other matter which I may consider relevant. Most important to my mind, is Susan's wish to return to the property which has for so many years been her home. The only issue is whether or not that is feasible. In that regard her GP, Dr Doherty, wrote by letter dated 3 June 2009 that:

"there is nothing dangerous or threatening to [Susan's] health by her returning home provided that adequate care and facilities are provided".

31. He elaborated on that advice in a letter dated 21 July 2009:

"It would be practicably possible for [Susan] to live at her old home at Granby Close and from a medical point of view the action would be advisable if she wishes. I know that she is aware that she might feel more isolated in her own home and have more anxiety about, for instance, staff turning up than in the present environment, but, as in all such cases, it would be recommended or otherwise depending on her choice".

32. As for assistance, he continued:

"There are two aspects to the assistance that she would require to live independently at her old home; one is a re-provision of adaptations with a fixed environment, so, for instance, moving out thresholds, ensuring that a bathroom such that she could enter it and transfer readily on a level surface and have space enough for a motorized wheelchair and bed, and, of course, the re-wiring of her possum control would need to be undertaken.

The second aspect is assistance. She is able to call for help from care workers at the Saltways Cheshire Home where she lives currently at any time in 24 hours. In fact, for instance, at night time, after retiring to bed, she on average only calls once before getting-up time the next morning, so she would need, if living in her old home, to have staff 24 hours a day."

33. By letter dated 7 April 2009, the Worcestershire County Council wrote to confirm that:

"if Susan wishes to return to her home in Redditch, Worcestershire County Council will re-assess her care needs to ensure that she receives the most appropriate care package that assists her with all her eligible community care needs. Therefore we would support Susan to return home."

34. So far as Susan is concerned, she has explained in her evidence that, subject to modifications that the council have suggested being made to the property, she can return there and that discussions with the council and local authority have been fruitful, subject, as I say, to the decision in this claim.
35. In my judgment the desire of Susan to return to the property is entirely realistic and is of the utmost importance and a matter to which I should give very great weight in considering the appropriate order to make. Indeed, in all the circumstances to which I have referred I am wholly satisfied that it would be appropriate to make an order which at least gives to Susan a life interest in the property.
36. The more difficult question to my mind is whether reasonable financial provision requires that Susan should be entitled to the entirety of the estate by way of an absolute interest and specifically in this regard I must consider whether reasonable financial provision requires that Susan should be entitled to the entire beneficial interest in the property.
37. In considering this question I have had regard to all of the matters to which I have referred already and also consider the following points are particularly material.
38. First, the whole of Susan's application is premised on the basis that she wishes to live in the property for the rest of her life. That is something which she can do in the light of the order which I propose in any event to make, irrespective of whether the property becomes hers absolutely.
39. Second, Susan will receive the residue of £40,000 bequeathed to her under the terms of Ian's will in any event.
40. Third, if Susan returns to the property in order to live there, then she would not be able to sell it to raise more funds.
41. Fourth, Susan's own evidence is that the local authority will fund the care package they consider necessary, although, of course, they reserve the right to seek payment from Susan if her assets exceed a certain level, and, as I understand it, those assets will include her interest in the property.
42. Fifth, as Mr Haynes, who has appeared on behalf of Susan, has submitted in the course of his clear and helpful address to me, Susan seeks an absolute interest to give her maximum protection and control in a life where she has little of those factors now available to her. He recognises that her care package is currently met by the local authority and that expenses will be recouped if her capital exceeds particular limits. However, he submits it is conceivable the current systems may change, whether in the short, medium or long term, and at an age of 54 Susan is likely to see all of those changes. By having the entirety of the estate she is best placed to meet any unforeseen changes and it will allow her an opportunity to pay for outings, equipment and the like during her lifetime. I have to say for my part that while I do accept it is, of course, conceivable that the current systems may change, I do not consider it a very realistic possibility.
43. Sixth, accordingly, if I accede to Susan's application it seems to me to be overwhelmingly likely that a large part of the whole estate will ultimately be used up to pay for Susan's care and other needs, something that Susan and Ian were concerned to avoid.
44. Seventh, I believe I should have regard to the wishes of Ian as expressed in his will. Paul and Tracy are, as I have said, close relatives and Steven has been a friend to Ian and Susan for a considerable period of time.
45. Finally, I must consider under section 3(2) of the Act what Susan might reasonably have expected to receive if, on the day on which Ian died, the marriage, instead of being terminated by death, had been terminated by a divorce. In that event I consider it unlikely that Susan would have received the whole estate absolutely. However, I do consider it likely she would have received a life interest in the property.
46. In all these circumstances I have decided that such financial provision as is reasonable does not extend to the entire estate absolutely but that I should make an order which ensures that Ian's interest in the property is held for his intended beneficiaries subject to a life interest in favour of Susan, that Susan be permitted to live in the property for the rest of her life or so long as she is able to do so, and in that latter event that Ian's interest in the proceeds of sale of the property may be used to purchase or contribute to the purchase of such other property or properties as may be suitable for Susan to live in, and that Susan again be permitted to live in any such other property for the rest of her life or so long as she is able to do so.