England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st December 2009

MRS. JUSTICE ELEANOR KING

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mrs. Justice Eleanor King :

1. This is an appeal and cross appeal in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) following the death of J who died on 10^th July 2004 aged 70.
2. J (the deceased) left a net estate of £486,000. The beneficiaries were the Blue Cross Animal Welfare Charity, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals (the Charities).
3. J made no provision in her will dated 16^th April 2002 for her daughter, H (the daughter). With the will was a letter of wishes in which the deceased explained her reasons for preventing her only child from benefiting from her estate.
4. It is that failure of her mother to provide for her that H sought to challenge when she issued proceedings under the 1975 Act. H contends that she is a child of the deceased and that the disposition of her mother's estate effected by her will……. "is not such as to make reasonable financial provision for the applicant".
5. The Charities opposed the application.
6. The trial took place over 2 days on the 29^th and 30^th May 2007 before District Judge Ian Million. The judgment was handed down in August 2007 but the order was not perfected until 17^th December 2007. District Judge Million held that the deceased had failed to make reasonable provision for her daughter and ordered that H be paid £50,000 from the estate of the deceased. In addition the District Judge made various orders in respect of the costs of the claim.
7. By a Notice of Appeal dated the 17^th January 2008 H appealed against that order, contending that the sum of £50,000 ordered by the District Judge to be paid by the estate was insufficient.
8. Having considered the judgment of District Judge Million, the Charities took the pragmatic decision not to initiate their own appeal against the order. They took the view that, given the relatively modest award, the cost of launching an appeal could not be justified. Once, however, the daughter launched an appeal a decision was made on behalf of the Charities to cross appeal on the ground that the judge had failed properly to apply the law and that, had he done so, he would have concluded that no provision for the daughter was reasonable provision.
9. Unfortunately it was not until the 9^th October 2009 that the appeal came on for hearing. Mr. Howard Smith, who had appeared for the daughter at first instance, represented her once again. Mrs. Allardice represented the Charities, Mr. Harrap who represented the Charities at first instance and who had drafted the grounds for the cross appeal having become unwell.
10. It was decided between the parties that Mr. Smith should open the matter and set out the law; thereafter Ms Allardice would make her submissions on her cross appeal as to whether or not no provision was reasonable provision (in the circumstances of the present case).
11. Time constraints at the hearing of the appeal and cross appeal meant that counsel invited the court to adjourn the hearing at the conclusion of the cross appeal and to give judgment on the first issue, namely whether the deceased failed to make reasonable provision for her daughter. In the event that the cross appeal was allowed that would mark the end of the matter. If however the cross appeal was to be dismissed then the matter would have to be re-listed for a further hearing on the issue of quantum.

The Factual Matrix

12. The deceased was born on the 1^st June 1934. She married T on the 3^rd March 1956 when she was 21. He died just 4 years later in June 1960 in an industrial accident by which time his wife was pregnant with the daughter H, the claimant in these proceedings.
13. The daughter was born on 7^th September 1960. In the mid 1960s the deceased formed a relationship with B. The deceased and B lived together with the daughter, although they never married and had no other children. After B's death in 1996 J lived alone for the next 8 years until her death in 2004.
14. In about 1977 the daughter, then 17 years old, met a young man, N. The deceased disapproved of N, she thought that he would not make anything of his life and did not wish her daughter to have anything to do with him. The ensuing disagreement between mother and daughter went far beyond the sort of normal teenage disagreements that occur between adolescent daughters and mothers. In February 1978 the daughter secretly left home during the night and went to live with N at the home of his parents. Initially the deceased did not know where the daughter was, although she suspected she was with N. She reported the daughter as missing to the police and they visited N's family home where the Police found the daughter to be safe and well, but refusing to return home. The daughter never again lived under the same roof as her mother and there was no contact between them for the next 5 years.
15. As District Judge Million put it in his judgment "this was the start of what turned out to be a lifelong separation between mother and daughter".
16. Five years later, on the 30^th April 1983, the daughter married N. The deceased was neither invited to, nor informed of the wedding. During the course of her marriage the daughter has had 5 children. They are:

A born 6^th January 1984 (25)

I born 22^nd April 1987 (22)

L born 6^th November 1988 (20)

M born 18^th November 1991 (16)

E born 11^th November 1996 (11).

17. During the intervening years there were 3 attempts at reconciliation. The first was initiated by the daughter's mother in law; she telephoned the deceased to tell her that the daughter was pregnant. This first reconciliation lasted for about a year between May 1983 and April 1984 and spanned the birth of the deceased's first grandchild, A.
18. The deceased's diary shows that by 1984 relations were strained. The last entry is dated 26^th May 1984 which refers to N and said "had a call from the village idiot at ---- to say he was coming out to put a rope around my throat and H told me to F….. off". This telephone call led to the deceased instructing her solicitors to write a warning letter to N and also to her reporting his behaviour to the police.
19. The daughter gave evidence about this incident to the District Judge. DJ Million asked her several times what exactly her husband had said during the course of the telephone call. The District Judge found that the daughter's evidence was unsatisfactory and that she was refusing to answer his questions and had not forgotten (as she claimed) the content of the phone call. This exchange led the District Judge to make a finding that "for me the real significance of this exchange was that it undermined H's current credibility".
20. On 21^st March 1984 the deceased made a will excluding her daughter from any benefit. At that time the deceased and the daughter were still on speaking terms although, it is clear from the diary entries that , relations between them were strained. The deceased signed a letter of wishes the same day giving her reasons for omitting the daughter; in the letter she referred to the fact that her daughter had left her in 1978 and married in 1983. The District Judge was satisfied that the letter contained a number of factual inaccuracies but it, undoubtedly, made the fundamental position of the deceased plain.
21. Following the unpleasant telephone call between the deceased and N described in her diary on 26^th May 1984, there was a 10 year break in contact between the deceased and the daughter. During that period I, L and M were all born.
22. The second attempt at a reconciliation occurred in 1994. In April 1994 there was an accidental meeting between mother and daughter whilst out shopping. The deceased wrote several friendly letters and suggested a meeting. The daughter, her husband and their 4 children visited the deceased on the 1^st June 1994 for her 60^th birthday. The daughter on her account, thought the day had gone well. The deceased did not, for on the following day on the 2^nd June she wrote a letter to her daughter which was highly critical and referred back to "the pain that I had inflicted on me 17 years ago".
23. The final attempt at reconciliation again followed a chance meeting, this time at the dentists' between the deceased and N six years later, in late 1999. Again an exchange of letters followed. In December 1999 the daughter apologised to her mother for the "heartache" she had caused. The deceased responded in a letter dated 14^th January 2000. In the letter she asked for the apology to be committed to writing in order to "enable me to show my solicitor to show that you are really sincere this time about our relationship." The written apology was duly sent and the daughter was told that she (the deceased) was sure that her solicitor would "approve" the letter of apology.
24. This reconciliation was again short lived; it would seem that the deceased was upset at her daughter's choice of name for her youngest daughter E as it is the name of the daughter's mother in law; a woman the deceased disliked.
25. On the 16^th April 2002 the deceased executed her final will with a new letter of wishes. The letter of wishes again explained her decision to exclude the daughter from any provision. Again it referred to the separation in 1978. The District Judge found that the letter contained many inaccuracies and that the overall impression created was unfairly critical of the daughter. His overall finding was:

"[42] What is abundantly clear in my judgment is that the overwhelming and longstanding reason why J made no provision to her daughter was that she had left the home of her mother at the age of 17 years to go and remain with a man of whom the mother disapproved. That theme returns again and again throughout the 26 years between 1978 and J's death in 2004.

[43] ….it seems to me the only apology which would have satisfied J would have been one in which H in effect rejected her husband. J was obviously very distressed over the death of her husband during her pregnancy with her daughter. Just as the daughter was moving into adulthood at the age of 17, the daughter left home to live with someone else. I am satisfied that J saw that as a rejection and thereafter never overcame that further loss, as she saw it."

26. Shortly after the making of the final will the deceased told her daughter what she had done in a letter which was sent to her in May of 2002. The daughter replied in a letter dated 14^th May 2002 when she said:

"It is obvious that your wish is for me to have none of your estate, which was founded by the sad loss of my father, but never the less I thought you would have liked his grandchildren to benefit a little from what he sadly left 42 years ago. I have to accept that you have rejected me, it very upsetting to know this but you obviously have your reasons but I believe that there is more to your rejection than just my leaving home……"

The daughter's financial circumstances

27. The daughter, her husband and youngest 4 children live in a 3 bedroomed house rented from a Housing Association in an isolated village in Hertfordshire.
28. The daughter has not done any paid work since the birth of her eldest son A. She and her husband decided that she would be a fulltime mother. The District Judge recorded "in any event it would have been difficult for her to do paid work with 5 children at home".
29. I have been referred by the parties to a portion of the transcript of evidence. The District Judge asked questions of the daughter relating to her decision not to seek work whether on a part time or other basis given that E is now 10 and M, L and B aged 15, 18, and 20 respectively are all living at home and could keep an eye out for her whilst the daughter was out at work.
30. N apparently has a back problem (although he is not in receipt of any disability benefits) and works part time.
31. The family income is therefore extremely modest. In the year 2006 / 2007 the family's net income was in the region of £14,155, in addition the family receive housing and council tax benefit. I am told by Mr. Smith that 75% of income from all sources is represented by state benefits.

The Law

(a) The Appeal

32. The appeal is governed by Part 52 Civil Procedure Rule 1998. Part 52.11 says as follows:

Hearing of appeals

(1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission.

33. It follows, therefore, that there are two bases upon which an appeal can succeed namely: that the decision of the lower court is wrong or alternatively that it is unjust due to a procedural irregularity. 'Wrong' means that the court below erred in law, fact or the exercise of its discretion.
34. Ms Allardice on behalf of the Charities reminds me of the judgment of the House of Lords in Piglowska v Piglowska [1999] 2FLR 763:

"In G v G (Minors: Custody Appeal) [1985] FLR 894, 898G, this House, in the

speech of Lord Fraser of Tullybelton, approved the following statement of principle by Asquith LJ in Bellenden (Formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, 345, which concerned an order for maintenance for a divorced wife:

'It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.'

This passage has been cited and approved many times but some of its implications need to be explained. First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1:

'The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'"

35. In summary therefore this court can only interfere with the decision of DJ Million if he has erred in law or gone beyond the "generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong" I bear these key principles in mind when considering both the appeal and cross appeal.

(b) The Inheritance (Provision for Family and Dependants) Act 1975

36. The application is brought under The Inheritance (Provision for Family and Dependants) Act 1975. Section 1 of the 1975 Act provides:

1.—(1) 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)……

(b)…….

(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.

(2) In this Act 'reasonable financial provision'—

(a) ……

(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.

37. It follows that the court is faced with a two stage process. In Re Coventry [1980] Ch 461 Goff LJ approved the approach of Oliver J who at 1^st instance in that case had said: (p469)

"So these matters have to be considered at two stages - first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant's maintenance and, secondly, in determining the extent to which the court should exercise its powers under the Act if, but only if, it is satisfied that reasonable provision for the applicant's maintenance has not been made"

38. Goff LJ went on to describe the first stage as a value judgement or qualitative decision and the second as a question of discretion. He emphasised that an Appeal court should be slow to interfere with the decision of the judge at either stage.
39. The Act requires that at each of the two stages the court shall have regard to the matters set out in s3(1)(a)-(g) of the Act, with the weight to be attached to each varying in accordance with the facts of the individual case. Those factors are:

(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.

40. The first question the District Judge faced therefore, was to decide whether the daughter could satisfy him, for the purposes of section 2(1) of the Act, that the disposition of the deceased's estate was not such as to make reasonable provision for the her. Unless he was so satisfied he would not thereafter move on to consider the second question namely quantum. In Re Coventry Buckley LJ approved of Oliver J's observation 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 or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. 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 disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant"

41. Miss Allardice emphasised in oral submissions the importance of the court asking the correct question. As Goff LJ put it in Re Coventry:

"Counsel for the plaintiff argued in his reply that Oliver J. had found as a fact that the plaintiff was in need of maintenance, because at best his circumstances were near the subsistence level, and possibly below, and that, therefore, the judge should have found that the provisions were unreasonable; but in my judgment that does not follow. The question is not whether it might have been reasonable for the deceased to assist his son, the plaintiff, but whether in all the circumstances, looked at objectively, it is unreasonable that the effective provisions governing the estate did not do so."

42. Miss Allardice submitted that the dicta in Re Myers [2005] WTLR 851 provided a good exposition of how to avoid asking the 'wrong' question. In that case the testator had set and old fashioned views on the education of women and of the role of women in society. Mr Justice Munby (as he then was) said:

"Nor can the claimant assert a claim merely because the deceased's reasons for cutting her out of his will may have been…. old fashioned. Insofar as it is part of my function to assess the deceased's reasons for having acted as he did – and in the final analysis the matter has to be judged by reference to the objective results of what he did rather than by reference to his subjective reasons, the claimant is not entitled to succeed merely because the reasons which commended themselves to a man old enough to have had some memory of the first world war might not equally commend themselves to a judge who was not even born when the Second World War ended."

43. In this context it is useful also to consider Goff LJ's words in Re Coventry (p488) when he said:

"I think any view expressed by a deceased person that he wishes a particular person to benefit will generally be of little significance, because the question is not subjective but objective. An express reason for rejecting the applicant is a different matter and may be very relevant to the problem."

44. Butler–Sloss LJ commented on that passage in Re Hancock at p352, saying that she took the view that:

".. A good reason to exclude a member of the family has to be a relevant consideration. However, in my view, the recognition by the testator of the status of members of his family and his goodwill towards them… are factors which it is proper to take into account."

The approach to claims by an adult child

45. Re Coventry was the first Court of Appeal decision in relation to what was then the new 1975 Act. In a frequently quoted passage Oliver J, at first instance said:

"It cannot be enough to say "here is a son of the deceased; 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 dispositions 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."

46. This passage led to criticism being levelled at Oliver J on the ground that he had added a gloss to the section 3 factors by making a finding that, before a case could be made out on behalf of an adult child it was necessary to find a moral obligation under s3(1)(d). Goff LJ rejected that submission saying:

"Oliver J. nowhere said that a moral obligation was a prerequisite of an application under section 1 (1) (c); nor did he mean any such thing. It is true that he said a moral obligation was required, but in my view that was on the facts of this particular case, because he found nothing else sufficient to produce unreasonableness."

47. The dicta of Oliver J in Re Coventry was revisited by the Court of Appeal in Re Hancock [1998] 2 FLR 346

"In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s 3 of the 1975 Act requires the court to have regard. Some factors may be neutral but many will go in the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. In Re Coventry, (Deceased); Coventry v Coventry [1980] Ch 461 there was placed in the scales a factor of major weight against the proposition that there had been a failure to make reasonable financial provision and that was that the plaintiff was capable of earning, and was earning, his living. This meant that for the scales to be turned and for the court to find that there had been a failure to make reasonable financial provision for the plaintiff a factor of great weight would be needed in the opposite scale. Typically, the weightiest factor in favour of an applicant seeking to show that there has been a failure to make reasonable financial provision for him or her, is present when there is found to have been a moral obligation on the deceased to make financial provision for the applicant. But that factor was held by Oliver J not to be present in Re Coventry."

48. Most recently the Court of Appeal considered the position of an adult child in Espinosa v Bourke [1999] 1 FLR 747. In her judgment Butler-Sloss LJ considered each of the reported cases which had touched on the interpretation of sub-section 3(1) (d) (any obligations and responsibilities which the deceased had towards any applicant). She summarised the position as follows:

"There may have been some confusion in the minds of trial judges that the appellate court was placing a gloss upon the words of the section, and putting some special emphasis upon the requirements of subs (1)(d) so as to elevate moral obligation or special circumstance to some threshold requirement. From the judgments of this court in Re Coventry to the present day, it should be clear that no gloss has been put upon subs (1)(d). An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)–(g) and assess the relevance and the weight to be given to each factor in the list. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator's dispositions. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act."

49. From the analysis of the various cases which have come before the Court of Appeal I, therefore, collect that the following, whilst not providing a definitive list should , be borne in mind in this type of case:

i) It is for the Claimant to prove his or her case

ii) Nothing in the 1975 Act undermines the basic proposition that a citizen of England and Wales is at liberty at his death to dispose of his own property in whatever way he pleases

iii) Section 3 of the Act does not 'rank' the matters to be taken into consideration. The weight of each of the matters specified in the section will depend upon the facts of the particular case. That is not to say that in an individual case one or two factors may not have a magnetic or even decisive influence on the outcome (By analogy to the similar approach of the House of Lords in relation to s25 MCA 1973 in White v White [2001] 1 AC 596 at p608)

iv) The question is not whether the deceased acted unreasonably but whether, looked at objectively, the lack of disposition produces an unreasonable result; in that it does not make any or any greater provision for the claimant.

v) There is no threshold requirement that an adult child claimant has to establish some form of moral obligation or special circumstance

vi) Necessitous circumstances cannot in themselves be a reason to alter the testator's dispositions.

vii) The ability of the claimant to earn a living is a significant factor.

viii) An express reason for rejecting an applicant is a relevant consideration.

The Judgment

The District Judge set out in detail the history of the family and in particular analysed the three attempts at reconciliation between the deceased and the daughter. He concluded at para 14 by saying

"… my overall impression and findings from the evidence was that both mother and daughter made attempts to restore their relationship. As I find, each attempt foundered because of difficulties from both sides. However I find the principal reason for a lack of a successful reconciliation was J's inability to come to terms with her daughter's decision to leave home and live with her boyfriend, later her husband."

50. The District Judge went through each of the of s3 factors in turn. In relation to the important factor at s3(1)(d) 'obligations and responsibilities', the District Judge said:

[51]"J owed her daughter the ordinary family obligations of a mother towards her only child who was an independent adult. There was no other applicant or beneficiary to whom J had any obligation or responsibility. The mother did know that her daughter had little money and had obligations and responsibilities (shared with N) for five of her own children, who were the only grandchildren of the deceased."

51. The District Judge went on to say that the deceased felt the potential pull of those obligations; evidenced by reference in the judgment to a letter written by the deceased in which she expressed her view that she had not wished to exclude the family from the estate but felt driven to do so.
52. The District Judge concluded his discussion of this factor by saying

"[55] Whilst those family obligations existed, I accept, as Mr Harrap submitted, that despite the relationship of mother and daughter, the mother had gone out of her way over a number of years to tell her daughter that she felt no responsibility to her as a daughter, because she left home at 17."

53. The other factor considered in particular detail was s3(1)(g) - any other matter, including conduct. The District Judge set out his conclusions about the estrangement between mother and daughter:

"[58]…… A daughter is entitled (indeed would be expected) to make a life with a partner of her choice and have a family of her own. She would reasonably hope that a parent would accept such a choice, and not blame her for it."

"[59] The letter and other evidence showed in my judgment that J was capricious and unfair in many of the reasons she gave for excluding her daughter (and grandchildren) from the estate. I accept however that H (and N) contributed to some of the difficulties in effecting a sustained reconciliation."

54. the District Judge went on to say:

"[63] … the dominant reason for the failure of those attempts (the reconciliations) was the inflexible and unforgiving nature of J. I do not accept as H would have me believe that the fault was all on the side of her mother. I am satisfied that she (and her husband, N) have, unwisely, said some hurtful and unpleasant things. There was therefore, I find, some fault on their side too. But I am satisfied that the primary reason for the failed reconciliations was J's unreasonable requirement that her daughter should, in effect, apologise for having loved, married and remained with N against the mother's wishes. J treated this as a rejection of herself, which she was never able to come to terms with as a reasonable parent should.

[64] I am satisfied therefore that the rejection by the mother of her only child at the age of 17, and which she then maintained for the rest of her life was unreasonable and this has led to J unreasonably excluding her daughter from any financial provision in her will, despite her daughter's obviously constrained and needy financial circumstances and her daughter's wish for and attempts at reconciliation…"

55. Mr Harrap drafted the Grounds of the Cross Appeal. The heart of his Appeal, as subsequently argued by Miss Allardice, is that the Judge erred in law, he asked himself the wrong question; he fell, it is submitted, into the trap of asking himself whether the deceased had been unreasonable rather than whether, looked at objectively, her disposition (or lack of it) produced an unreasonable result. Mr. Harrap argued that the District Judge, having asked himself the wrong question, thereafter failed objectively to apply the section 3 factors in particular:

i) That he failed to determine what factors beyond financial need on the part of the daughter supported the proposition that no provision was unreasonable provision.

ii) There was nothing on the facts of the case to amount to a reason why the deceased owed any obligation to her daughter to make provision and her daughter had never been led to believe that she would receive provision for her maintenance. If the DJ was holding that the "ordinary obligations of a mother towards her only child who was an independent adult" were relevant obligations such as to tip the balance in favour of the daughter then the DJ was creating a right in adult children which Parliament did not intend.

iii) The DJ erred in allowing the reasons as to why no effective reconciliation took place and as to whether it had been unreasonable of the deceased to exclude her daughter to dominate his thinking rather than thinking whether there was any section 3 factor beyond necessitous circumstances which would allow him to be satisfied that the disposition of the estate was not such as to make reasonable provision for the maintenance of the daughter.

iv) He failed to take into account that the daughter had not had any expectancy of provision for herself and that she and her husband had managed their lives on that basis.

56. Mr Smith in response to the Cross Appeal submitted that the District Judge had considered each of the s3(1) factors in particular he stressed:

i) He was entitled to regard the daughter's poor financial circumstances as an important factor.

ii) If it is reasonable to take into account reasons given for omitting a beneficiary it must also be reasonable to take into account whether those reasons were factually correct and accurate.

iii) The fact that the daughter sought to effect a reconciliation and apologised but met with an unreasonable response is a matter that can be weighed in the balance.

iv) Lack of expectation is likely to be neutral.

v) In as much as the District Judge appeared to be saying that there were obligations to an independent child he was only saying they were ordinary obligations and, therefore, not inconsistent with Re Coventry.

57. The Charities real complaint, Mr Smith says, is as to the District Judge's conclusion as to where, precisely, the balance tipped in favour of the daughter and that is a matter in respect of which the appellate court should be slow to interfere.
58. Having considered carefully the arguments on both sides and reread the relevant authorities I have concluded that the Learned District Judge erred in law. I accept the submission of Miss Allardice that the learned District Judge asked himself the wrong question. The question, as is emphasised in the authorities, is not whether the deceased acted unreasonably, but whether on an objective basis, having considered all the factors in s3, the resulting provision, or lack of it, is unreasonable. To conclude otherwise would be to undermine the basic premise that in the UK a citizen can leave his estate where he pleases. As Ms Allardice properly reminds the court there is no concept of 'forced heirship' in this jurisdiction.
59. If I am wrong in concluding that District Judge Million erred in law and he did in fact ask himself the correct question, nevertheless in my judgment he in any event erred in his balancing of the s3 factors with the consequence that he was plainly wrong in concluding that the deceased had failed to make reasonable provision for the daughter.
60. So far as the error of law is concerned I have concluded, with respect to the District Judge, that in paragraph 64 of his judgment he made too great a leap when he said that the rejection by the mother of her only child was unreasonable and that this has led her unreasonably to exclude her daughter from her will despite her needy circumstances. In my judgment the learned judge was so concerned with the rights and wrongs of the attempts at reconciliation that he asked himself the wrong question. Put another way the Learned judge was wrong in his approach when he appears to be saying, "was the deceased unreasonable in holding a grudge for 26 years and, if so, then given her daughter's necessitous circumstances, failure to provide any provision for her is unreasonable provision."
61. As Munby J said in re Myers, the adult child is not entitled to succeed because the reasons for excluding that adult child from the will may not commend themselves to a modern judge. The District Judge may well have thought, (and indeed may even be right when applying contemporary mores), that the deceased was unreasonable in her inability to forgive her only child for running away all those years ago and further, that she was unreasonable in preferring to leave her estate to a group of charities in which she had shown little or no interest; that is not however the issue the Act requires the court to resolve. The question is was the provision unreasonable. Whilst the background history was and is undoubtedly relevant, when determining whether the provision is unreasonable an objective analysis of all the s3 factors is required in particular:

i) the daughter and her husband had lived all their married life in the belief that they had no expectations. The abortive attempts at reconciliation did not serve to raise false hopes; on the contrary in her letter of 14 May 2002 (after which there were no further attempts at reconciliation), the daughter accepted that the deceased did not intend to provide for her and expressed her regret that her mother was not going to leave anything to her grandchildren

ii) the single most relevant fact which determined the deceased's decision to exclude the daughter from her will was a breach of the most profound and enduring nature between this mother and daughter from a time when the daughter was only 17 years old. So complete was the breach that the deceased neither knew, nor was informed, of the marriage of the daughter, (her only child), and was unaware of the birth of at least three of her grandchildren. The reconciliations and the reasons for their failure dominated the Learned Judge's analysis but must be put in context:

a) Whilst at her mother's request the daughter wrote a letter of apology, none of the attempts at rapprochement were initiated by the daughter.

b) The only reconciliation of substance lasted a year between 1983 and 1984 some twenty years prior to the deceased's death; that fragile reunion disintegrated after an abusive telephone call from N to the deceased, a telephone call about which the District Judge found the daughter to have been less than frank.

c) The second attempt, in effect, amounted to one visit in June 1994.

d) The final attempt was described as 'short lived', being over in a matter of months at the end of 1999 and beginning of 2000.

e) There was no further contact prior to the deceased's death in July 2004.

iii) While the daughter's family is undoubtedly necessitous that is, in part, as a consequence of what are referred to in the modern vernacular as 'lifestyle choices'. This was explored by the District Judge in evidence but not referred to in his judgment. The daughter and her husband N have chosen to have 5 children and for H to stay at home as a home maker. N works part time; (there is mention of a back problem but he is not receiving any form of incapacity benefit.) There can be no criticism of such a choice. It is one of a range of choices faced by every contemporary family - whether to determine the size of their family by financial considerations and whether or not the mother (or father) should go out to work, either full or part time, in order to supplement the family coffers once the children are of an appropriate age.

This family live a life where the daughter is a homemaker and N works part time; this means the children (now mostly adult) have had the inestimable advantage of having not just one parent at home full time but also their father around the home a great deal of time. This has, inevitably, impacted on the material standard of living of the family; money is undoubtedly short and finding work now would not be easy.

The deceased for her part consistently made her position clear over many years in a number of wills and letters of wishes (even if she was being unfair and or unreasonable). The family therefore at no time have had expectations that, those lifestyle choices having been made, they could look forward to a windfall upon the death of the deceased which would serve to ease their financial circumstances.

iv) the court must bear in mind in considering the financial circumstances of the daughter and the impact those circumstances should have upon on the decision making process, the view expressed by the Court of Appeal in Espinosa v Bourke [1999] 1 FLR 747. There it was said that although the question of moral obligation was not a threshold requirement, it was the case that an applicant of working age, with a job or capable of obtaining a job, would have to identify some very weighty factor to establish that there had been a failure to make reasonable decision, typically some obligation owed by the deceased.

The "ordinary family obligations of a mother towards her only child who was an independent adult" described in paragraph 51 of the judgment of the District Judge is not in my judgment the sort of 'weighty factor' envisaged by their Lordships in Espinosa. There was nothing in the conduct of the relationship between the deceased and the mother that gave rise to any special obligation or particular responsibility on the part of the deceased; on the contrary the estrangement having lasted all the daughter's adult life meant that, to all intents and purposes, there was no relationship out of which any sort of obligation could arise. Whilst not decisive and always bearing in mind that such an obligation is not a threshold criteria, its total absence will be an important factor.

62. Mr Smith preys in aid the Espinosa case. In Espinosa the Court of Appeal held that insufficient weight had been given to the needs and resources of the appellant, but it must be remembered that in that case the appellant was wholly dependant upon the deceased and, upon his death, the appellant lost all her meagre sources of income.
63. District Judge Million having once concluded that the s3 factors produced an unreasonable result went on to say that the fact that the daughter had no expectations and that she and her husband had managed their lives on that basis, meant that the provision should be limited; although, he said, it did not mean that the result was a reasonable one in the straightened circumstances of the family.
64. With respect I disagree with the approach of the learned Judge. Each of the s3 factors are to be taken into consideration at both stages of the process. The lack of expectation on the part of the daughter was a significant matter which should have been specifically taken into account, together with all the other factors including the length and quality of the estrangement at the first stage when the court determined whether no provision was reasonable provision. The approach of the District Judge came perilously close to allowing necessitous circumstances to be determinative.
65. It is accepted by Mr Smith that a filial relationship coupled with necessitous circumstances cannot, without more, lead a court inexorably to conclude that no provision is unreasonable provision. The trial judge when assessing the s3 factors is weighing each of them up in such a way as to see whether any single one or a combination of a number of factors will tip the balance in favour of the excluded child.
66. In my judgment the District Judge fell into error by over emphasising the deceased's subjective reasons for acting as she did rather than assessing the objective results of her disposition. Having done so, he progressed to his key conclusion that "the rejection by the mother of her only child at the age of 17, and which she then maintained for the rest of her life was unreasonable and this has led to J unreasonably excluding her daughter from any financial provision in her will, despite her daughter's obviously constrained and needy financial circumstances and her daughter's wish for and attempts at reconciliation" ,
67. Despite looking at each s3 factor separately, the Learned Judge failed thereafter to stand back and assess the impact of them when taken together. Had he done so he would, in my judgment, have concluded that, far from any of the s3 factors tipping the balance in favour of the daughter's claim, the court was left with a filial relationship and necessitous circumstances with nothing more of sufficient cogency to drive a court to conclude that, in all the circumstances of the case, no provision for the daughter was unreasonable provision.
68. It would be a severe court indeed that did not have a measure of sympathy for the daughter. H finds herself, an only child in financial straights. The substantial and life changing amount of money which was her mother's to bequeath she sees left, not to herself (or even to her children), but to a number of Charities in which her mother showed no particular interest in her lifetime. The philosophy of the Act however is clear; it is designed to provide for those family members and dependants specified in the 1975 Act, in respect of whom the testator has failed to make what is deemed by statute and interpreted by case law, as reasonable provision.
69. District Judge Million was of the view that the deceased was unreasonable in her treatment of the daughter. The fact remains that unless one or more of the other of the factors set out in s3 of the 1975 Act serve to tip the balance in favour of such interference, then for so long as the laws of England and Wales reject the concept of forced heirship, its courts will decline to step in and interfere with the validly expressed intention of a testator in relation to his or her adult children albeit in necessitous circumstances.
70. In all the circumstances and for the reasons set out in this judgment I will allow the cross appeal of the charities and dismiss the appeal of the daughter. The order of the District Judge dated 17 December 2007 will be set aside and an order substituted dismissing the claimant's claim for provision from the estate of the deceased.