English and Welsh Courts - Miscellaneous

IN THE CENTRAL LONDON COUNTY COURT

		Thomas More Building Strand, London, WC2A 2LL
		19/08/2016

Mr Recorder Halpern QC :

1. This is the judgment following the trial of proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") brought by Danielle Ames in respect of the estate of her late father Michael Ames. Since most of the persons involved have the same surname, I shall use first names without meaning any disrespect. The executors of Michael's estate took no active part in the proceedings, the contest being between Danielle (who appeared by Mr Oliver Wooding) and Michael's widow Elaine (who appeared by Ms Faith Julian).

The background facts

2. The background facts, which are largely agreed, are as follows.

The parties

3. Michael's first wife is Carleen. The only child of the marriage is Danielle, who is now aged 41. Michael and Carleen separated and then divorced in or about the late 1970s, when Danielle was a young girl. Thereafter Danielle lived with her mother while she was growing up. She had some contact with her father, both before and after she reached the age of 18, but there is a dispute as to the extent of the contact and as to the warmth of the relationship.
4. Michael and Elaine lived together as man and wife from about 1980 until Michael's death in 2013, but they only formally married in 2001.
5. Danielle lives with her long-term partner, Lornis Branch. She has two children by him who are now aged 19 and 13.

Michael's businesses

6. In the course of his working life Michael had a number of small businesses, including a picture framing business called Ames Frames. He also took over a glass business which he acquired from Carleen's father (there is a dispute as to the circumstances in which that happened, but I do not need resolve it). He subsequently sold the glass business and bought a glass and glazing company called Hond & Langer ("H&L").
7. Michael and Elaine bought a property comprising a shop at 859 Green Lanes, London N21, a residential flat above the shop at 859A, and a half shop at 861 (I shall refer to the whole property as "Green Lanes"). H&L traded from 859, and Michael and Elaine started up a business as equal partners selling balloons from 861.

Danielle's (or Lornis's) businesses

8. Michael gave the business of Ames Frames to Danielle in the mid-1990s. He provided her with the capital resources to run the business. She gave up the business in 2003 on the birth of her daughter; I heard no evidence as to whether she sold the business or its assets.
9. In or about 2005 a new business was started called All Frames & Mirrors. In Danielle's first witness statement she said that she started this business with Lornis, but in her oral evidence she said that the business has always been owned by Lornis as a sole trader. It is common ground that Michael paid some of the start-up costs, but there is a dispute as to the extent of his payments and as to whether the payments extended to the running costs, as opposed to the start-up costs, of the business.
10. Danielle says that she used to work from home for H&L going through emails, for which Michael paid her £80 a week in cash. She has produced pay slips and also P45s and P60 forms in support of her claim. Elaine accepts that these documents are genuine, but says that Danielle never worked for H&L.
11. Danielle is not currently working.

After Michael's death

12. Michael and Elaine had both been in poor health for some time before Michael's death, but he died suddenly on 1st June 2013.
13. By his Will dated 20th December 2005 Michael left his entire estate to Elaine, if she survived him. If she did not survive, he left 40% of his estate to Danielle, with the remainder divided equally between four individuals whom he described as his grandchildren. Two of these are Danielle's children and two are the grandchildren of Elaine from her first marriage. Probate was granted to the 1st and 2nd Defendants on 11th February 2014 and the net estate was sworn for probate at £1,049,414.
14. Elaine is now aged 63. She continues to live in the matrimonial home. Her daughter Cherie lives with her and Elaine says that she relies on Cherie to look after her. I do not know whether Cherie makes any financial contribution to the home.
15. H&L currently trades from 859 and 861 Green Lanes, paying rent to Elaine. She also receives rent from the flat at 859A.

Danielle's evidence

16. The only witnesses who gave live evidence were Danielle and Elaine. Danielle was an unsatisfactory witness whom I found to be unreliable. I have concluded that I cannot accept any of her evidence unless it is either independently corroborated or is inherently probable.
17. The aspects of her evidence which I found to be particularly unsatisfactory were that:

(1) She repeatedly blamed her solicitor for errors (some of them serious) in her witness statement and for the failure to produce documents which she claimed helped her case. She also blamed Lornis for inconsistencies between her evidence and the financial documents on which her case was based, saying that she relied on him to deal with these financial issues. However, he was not called as a witness.

(2) She repeatedly failed to give straightforward answers to questions. I make some allowance for the fact that some of the questions in cross-examination were very lengthy and were in substance submissions to the court, followed by a question mark, but that cannot excuse all the instances of this. I was left with the impression that her main aim in giving evidence was not to assist the court by answering the questions to the best of her ability, but to assist her case by getting across the points she wanted to make. She was not above inventing or embellishing facts if she could see no other way of sticking to her story in the face of other evidence.

18. I give some examples (more are set out in the course of this judgment):

(1) In her first statement she said, in relation to the financial help that Michael gave her in her business: "My father provided some on-going support by providing glass and glazing material if we needed them". In her second statement this had grown into: "My father paid the deposit on the shop I am now using … My father gave me pretty much anything I needed for the business". In her oral evidence she maintained that he paid for anything needed for the business; however, she later accepted that Lornis had always been a sole trader and that it had never been her business.

(2) Her first statement (August 2014) said that her monthly deficit representing outgoings less income was £600, but in her oral evidence this has grown to £2,000, with no satisfactory explanation for the increase.

(3) In her first statement she said that she received housing benefit and paid £14.80 per month as top-up rent. In her oral evidence she denied that she received any housing benefit and said that her rent was £1,480 a month. She blamed her solicitor for having misplaced the decimal point and for having assumed that she received housing benefit without asking her. She did not acknowledge any responsibility for signing a statement which contained (on her oral evidence) such fundamental errors. I accept (in the light of documentary evidence) that the rent is around £1,500 a month, but I am left in doubt as to whether she receives housing benefit. (Given that Danielle and Lornis are renting their home from a private landlord, any housing benefit would be paid to them and not direct to the landlord.)

(4) She exhibited to her statements invoices or delivery notes for items bought by Michael for her business. When it was pointed out that the latest document was dated 2007 and that the documents appeared to relate to start-up costs, she said that these were the only ones she could find and that he continued to buy stock for her thereafter. She sought to counter the question by suggesting that the items must have been bought in the name of Michael's business, which is why she did not have invoices or delivery notes. I found this unconvincing.

(5) She referred in her oral evidence to money she had had to borrow from her family to make ends meet. I was shown correspondence in which her solicitor agreed on 20th June to provide evidence of this, but no evidence was forthcoming.

(6) Ms Julian pointed out in cross-examination that, with an alleged monthly deficit of some £2,000, she ought to have accumulated debts of nearly £80,000 since Michael's death, instead of the £15,200 which she claimed she owed. She answered this by saying that she had received gifts as well as loans from her grandmother and other family members. However, she could not explain why these were not mentioned in her statement. I formed the conclusion that this was an invention in the witness box intended to get her out of a hole.

(7) In her first witness statement she said that Michael used to say: "it will all be yours one day". It is not clear from the statement whether this was a reference to H&L or to the entire estate; I assume she meant the former, since she cannot have imagined that Michael intended to leave nothing to Elaine. However, in cross-examination, this changed into an expectation that Michael would leave his shares in H&L to her son. In my judgment the original statement was untrue. She was gilding the lily, and when it became clear to her in cross-examination that this was not a sustainable piece of evidence, she watered it down to something which she hoped would appear more credible.

(8) It appears that she and Lornis have two cars, of which one is said to be for business use and one for personal use. Her statement of needs and resources said that she and Lornis spend £407 a month on motor expenses (i.e. £4,884 a year); this was intended to refer solely to personal use, not business use. The accounts for the business show £3,928 on motor expenses in 2013-4. It seems inherently unlikely that she and Lornis spend nearly £9,000 on the running costs of their cars; it would therefore appear either that she has exaggerated the home use or that a considerable amount of home use was wrongly being attributed to the business. When this was pointed out to her, her immediate reaction was to plead ignorance and blame Lornis.

Elaine's evidence

19. Elaine's demeanour impressed me more favourably than Danielle's. She gave her evidence in a straightforward way, avoiding exaggeration. She appeared to be doing her best to understand and answer the questions. Nevertheless, there are a number of respects in which her evidence was unreliable. I do not think that she set out to embellish or invent facts, but I do find that she has convinced herself of her own narrative, which is not always accurate.
20. In her first witness statement Elaine said that once Danielle turned 18, all contact with Michael "stopped almost completely", save for contact occurring because Danielle worked for her maternal grandfather in the shop next door to Michael's shop. She also said that their relationship was "rocky and distant". Whilst I am satisfied that the relationship was not as warm as Danielle asserts, I am equally satisfied that it was not as cold as Elaine asserts. It is clear that Michael provided considerable financial assistance to Danielle over the years, and I have seen text messages over the last few months of Michael's life which indicate a warm and friendly relationship.
21. The other piece of Elaine's evidence which I find particularly troubling is her assertion that Danielle never worked for H&L. She accepted that there were pay slips for Danielle and P60s, but she said that these were fraudulently prepared by or at the request of Michael to cover payments to Sue Gannon, a woman who did work for the business, but did not appear as an employee on the books. The reason advanced for this fraud was that Ms Gannon's pension would be prejudiced if she was seen to be earning money. I find this explanation incredible, particularly since it would have involved producing false records to HMRC which resulted in Danielle having to pay PAYE on earnings she did not receive. I consider it unlikely that Elaine has invented a total lie; there might well be some grain of truth which has been misinterpreted by Elaine.
22. There are other examples of errors in her evidence, but although they show that she is at times unreliable, in my judgment these further examples do not indicate deliberate untruthfulness:

(1) According to the unchallenged witness statement of Mr Jones, the executor, the goodwill of the balloon shop business was valued by the partnership's accountant at £40,000 as being the "price agreed on an intended sale in 2012 which did not proceed as the buyer could not raise the money". It appears that this information was given to the accountant by Elaine for the purpose of probate. In her oral evidence Elaine said that a female customer wanted to buy the business, that Michael said he would sell it for £40,000, but the woman then came back after speaking to her husband and said that she would buy it for £20,000, provided that Elaine stayed on. This oral evidence is not consistent with the evidence of Mr Jones. Mr Wooding put it to Elaine that she had deliberately downplayed the value in order to minimise the size of the estate, but in my judgment there was no such motive.

(2) She was taken to the income tax return for the balloon business in 2014-5, a year after Michael's death. The tax return was prepared by her accountant and showed her as still being in partnership with Michael. She was unable to explain this but readily agreed that it was wrong. I am satisfied that she did not appreciate what she was signing.

(3) Although Elaine said both in her witness statement and in her oral evidence that Green Lanes had been owned jointly with Michael, her solicitor denied in writing a week before the trial that it had ever been a joint asset. Elaine said in evidence that she was unable to explain this statement by her solicitor. Given that her own evidence has been consistent throughout, both in her witness statement and in court, I do not think it right to hold this against her.

Conclusion on the oral evidence

23. There are a number of issues of fact about which I have been given rival accounts by Danielle and Elaine and where I have no corroborative evidence. In such cases I have to resort to the guidance given by Lord Brandon in Rhesa Shipping Co SA v. Edmunds ("The Popi M") [1985] 1 WLR 948 at 955-6:

"The judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take."

The law

24. It is agreed that Danielle has standing to apply under section 1(1)(c) of the Act as a child of the deceased. The burden of proof is on her to show that the disposition of Michael's estate by his Will is not such as to make reasonable financial provision for her maintenance. The meaning of maintenance is explained in Re Dennis (deceased) [1981] 2 All ER 140 at 145. In determining whether the Will failed to make reasonable provision for Danielle and (if so) what would be reasonable, the court is to have regard to the matters listed in section 3(1) (which I set out below, save for (b) which is irrelevant).

Adult child of the deceased

25. It is agreed that an adult child does not necessarily have to demonstrate a moral claim in order to succeed, but in practice she is unlikely to succeed merely by showing that she is an adult child in necessitous circumstances. The law is fully set out in Ilott v. Mitson [2012] 2 FLR 170 at [16] to [35]. I will not lengthen this judgment by setting out those paragraphs, but I have them in mind, and in particular the statement of Knox J quoted at [29]. Mr Wooding realistically conceded that it is usually harder for an adult child to succeed than for a child who is at school or otherwise a student. In my judgment the court, when weighing up the factors in section 3, is unlikely to give very much weight to the mere fact that an adult applicant is a child of the deceased; hence in practice an adult child is unlikely to succeed unless she can demonstrate that the balance comes down in her favour after considering all the factors in section 3. The existence of a moral obligation is one way of demonstrating this but is not a prerequisite.

Date of valuation

26. Section 3(5) says that the court is to take into account facts known to the court at the date of the hearing; this is confirmed by Re Hancock deceased [1998] 2 FLR 396 at [18]. An issue arises on this provision as it relates to the balloon shop business. This was a partnership at will. It therefore dissolved on Michael's death and his estate became notionally entitled to 50% of the goodwill.
27. There is a dispute as to the value of the goodwill on his death., but it is clear that the business has ceased trading and presumably has no value today. Should Michael's share of the goodwill be valued as at the date of his death or today?

(1) Mr Wooding submitted that Michael's share in the goodwill crystallised on his death and is not affected by subsequent events. Ms Julian submitted that section 3(5) requires the court to look at the value as at today's value. I was initially attracted by Mr Wooding's submission, but on reflection I agree with Ms Julian.

(2) Section 42(1) of the Partnership Act 1890 deals with right of a deceased partner's executors to profits following dissolution. One option is for the executors to allow the surviving partner to continue trading with the assets. In that event the estate is entitled to such share of the profits as is attributable to the surviving partner's use of the deceased's share of the net assets: Sandhu v. Gill [2006] Ch 456 at [49].

(3) Elaine is both the surviving partner and the sole beneficiary of Michael's estate. In my judgment, the legal analysis which most closely fits the commercial reality is that Elaine carried on the business using Michael's share of the goodwill. The business was not successful and closed down; hence it now has no current value.

(4) In my judgment I should treat it as having no value, firstly because that reflects the commercial reality today and secondly because the evidence of market value at the date of Michael's death is unsatisfactory (see paragraph 22(1) above).

Joint interests

28. Section 9 gives the court power to treat Michael's interest in any joint tenancy immediately before his death as if it were an asset of his estate "to such extent as appears to the court to be just in all the circumstances". The value of the interest is the value at the date of the hearing, unless the court orders that it be valued at a different date. Neither counsel was able to point to any authority giving guidance on how to exercise the discretion under s. 9. (At one stage Ms Julian indicated that she might have a point of law as to the effect of the amendment of section 9 in 2014, but this was not pursued.)
29. Perhaps unsurprisingly, Mr Wooding contended that the default position was that the joint asset should be taken into account, at least where it was an investment and not the matrimonial home, so as to increase the size of the estate available for distribution, whilst Ms Julian contended for the opposite default position, on the ground that Michael and Elaine had presumably intended there to be a right of survivorship. The Act itself gives no clue as to how to exercise the discretion. If the joint asset is excluded from the net estate, then it swells Elaine's resources. On this basis, it might appear to make little difference whether or not it is included, save that it might affect the question whether there are realisable assets out of which provision could be made for Elaine.
30. I have concluded that I should include Green Lanes. It is a very large asset in the context of the estate as a whole and it seems capricious to make the question of its inclusion dependent on whether or not Michael and Elaine chose to create a beneficial tenancy in common when they bought the property. There is no evidence that they addressed their minds to this issue when they bought the property; I therefore assume that the beneficial joint tenancy arose by default, i.e. because they did not address their minds to the question of beneficial ownership.
31. It follows that I should also take into account rents from the property between the date of Michael's death and today. Mr Wooding realistically conceded that the amount to be taken into account was 50% of the excess of the rent over the mortgage instalments on Green Lanes. The figure amounts to just under £7,000.

The criteria under s. 3

(a) The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future

32. Danielle produced a schedule of needs and resources. The figures updated to trial showed monthly net income of £1,557 and outgoings of £3,570, leaving a deficit of almost exactly £2,000 per month.
33. The income comprised Lornis's income of £800 from All Frames & Mirrors, working family tax credit of £675.83 and child benefit of £82.80. It was agreed between the parties that I should consider the resources and needs of Danielle and Lornis as a family unit. It was put to Danielle in cross-examination that a number of withdrawals of cash from the business and purchases of items with money from the business were plainly for household use. Danielle's stock answer was to say that she did not really know much about the finances of the business and that these were questions for Lornis. I found this deeply unsatisfactory and I concluded that she was choosing to shelter behind the fact that Lornis had not been called to give evidence.
34. Given that this trial was fixed for one and a half days, there was no time to go through every item of expenditure. I allowed Ms Julian to produce schedules in her closing submissions. Mr Wooding did not challenge any specific item in the schedules. One schedule showed personal expenditure of £2,887.83 between January and July 2015. A second schedule showed payments into Lornis's personal bank account during the same period totalling £4,350, some from the business account and some from an unknown account. These two figures together indicate drawings or benefits amounting to £1,835 a month. This is to be contrasted with Danielle's sworn evidence that Lornis's income was£800 a month. I do not accept her evidence on this point. I find that the family's income was at least £1,835 a month; I am unable to reach a conclusion as to whether or not it was more.
35. Ms Julian did not have time to challenge every item in the list of outgoings. Some of her challenges proved to be unsuccessful, but others were more successful. Given my refusal to accept Danielle's uncorroborated evidence, I do not accept that her outgoings were as high as she has stated. It is likely that she has exaggerated them, but probably not by very much.
36. As noted in paragraph 18(6) above, if Danielle and Lornis were running at a loss of £2,000 a month, then they ought to have accumulated debts of nearly £80,000 instead of the debt of £15,200 which she stated on her schedule, but of which she provided no evidence. I regard this as further confirmation that the alleged deficit is not a true figure.
37. Danielle accepted in cross-examination that she is fit to work. She said that she would like to work with Lornis in All Frames & Mirrors but that the business will not sustain two salaries. She said that the only work she has known for her whole working life is the picture-framing business, but she gave no evidence of any attempts to find work in this field. She said that Michael once paid for her to go on a course to be a beautician but she did not like the work. She gave no evidence of any further endeavours to retrain for other employment. I accept that she might well have acquired a degree of specialist knowledge of the picture-framing business which would give her an edge over other potential employees in this field, but I do not accept that her skills are so specialised as to be non- transferable. If it is true that she was paid £80 a week by H&L during Michael's lifetime, then she would only need to do 11 hours a week at the minimum wage of £7.20 in order to compensate for the loss of that employment.

(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

38. Elaine is aged 63. She no longer works and cannot be expected to do so, given that she is of pensionable age. She has stated that she is in poor health and she has produced a doctor's letter verifying her state of health, but not saying how this translates into financial consequences. I accept Elaine's evidence that her GP is overworked and did not prioritise writing a letter giving this information, but it remains the case that I have no evidence as to any particular financial consequences. I therefore have to assume that she has the normal expectation of life of a woman of 63 and the normal financial needs of a woman of that age in terms of the financial consequences of any ill-health.
39. Her evidence is that she has outgoings of £6,990 a month, including £1,900 and £1,800 for the mortgages on her home and Green Lanes respectively. Mr Wooding's main challenge in cross-examination was to the £1,400 she claims to spend on her car. In her second witness statement she said that she is unwell and unable to drive. In her oral evidence she said that she is unable to drive at times when she is particularly anaemic, but after receiving treatment she is then fit to drive; I accept this.
40. Elaine's oral evidence was that her monthly income is £900 from the flat at 859A, £2,166 from rent paid by H&L for 859 and 861 Green Lanes, and £606 from her State pension.
41. The figures which I have set out would appear to suggest that she is running at a deficit and, indeed, Ms Julian sought somewhat faintly to argue that I should so conclude. However Elaine's oral evidence was that she did live within her means and had "a small disposable income". Mr Wooding accepted that evidence and so do I. It is clear that the figures set out above must be incomplete. However, I have no evidence that she has a substantial surplus of income over expenditure.
42. Elaine acquired a portfolio of quoted shares on Michael's death. It is common ground that this does not form part of his estate but passed under an inter vivos trust. It appears that the shares have been cashed and the money spent.

(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

43. There are issues of fact which were hotly contested between the parties and which I have been unable to resolve on the evidence before me. The first is the nature of the relationship between Danielle and Michael:

(1) Danielle said in her first statement: "I had a good relationship with my father throughout his life … We had a very close and loving relationship". In her second statement this had grown into: "I idolised my father and he doted on me." I am satisfied that this is an exaggeration. I find it striking that Danielle was not introduced to Elaine until 2003 (or 2005, on Danielle's own evidence), which was two years after Elaine married Michael. I accept that Carleen might have been the one who prevented contact with Elaine whilst Danielle was a child, but that does not explain why Danielle did not meet Elaine until she was 28 (or 30). If Danielle's relationship with her father was as close as she says, I would have expected her to have met Elaine sooner. I also find it striking that Danielle never visited Michael and Elaine (or even Michael alone) at any of their successive homes, and that Michael never visited Danielle and Lornis at their home.

(2) Nevertheless, I have also concluded that Elaine's description of a "rocky and distant relationship" is an exaggeration in the opposite direction.

(3) The burden of proof is on Danielle, and she has not persuaded me that her relationship between father and daughter was anything other than a reasonable one, neither unusually good nor unusually bad.

44. The second issue which I have been unable to resolve is the question of Danielle's employment by H&L: see paragraph 21 above. There is a witness statement from Sue Gannon which might have been highly relevant, had she given evidence, but she was unable to attend court. I attach very little weight to her evidence in the absence of cross- examination, particularly since she is not an impartial observer but makes clear her dislike of Elaine. If I were to give Danielle the benefit of the doubt by assuming that she did receive £80 a week, this would not be sufficient in all the circumstances to create any obligation or responsibility which survived Michael's death. In particular I bear in mind that on her evidence the payment was not a gift but was earned.
45. The third issue is the extent of gifts made by Michael over the years. I accept that he was generous towards her, particularly in setting her up in business, but I do not accept that he funded her lifestyle in the way that she asserts.

(e) The size and nature of the net estate of the deceased

46. It is common ground that Michael's estate comprised the following assets and liabilities, which had the following respective values at today's date:

(1) The matrimonial home where Elaine still lives. Its agreed value is £650,000, subject to a mortgage of £200,000. The monthly mortgage payment is £1,900.

(2) The shares in H&L, which both parties agreed for the purpose of these proceedings are to be taken to have no value, as a result of claims against H&L.

(3) Two vehicles whose value was agreed at £15,697; one was sold and the other was stolen, but the insurance money was paid to the estate. That money has long since been spent.

(4) The goodwill of the business of the balloon shop. I have concluded that this should be valued at nil.

47. The current value of Green Lanes is £790,000, subject to a mortgage of £300,000. The monthly mortgage payment is £1,800. The value of Michael's severable interest before his death was therefore £245,000. To this I add a further £7,000 for rent (see paragraph 31 above), making a total of £252,000.
48. Accordingly, the only assets which are currently of any value in Michael's estate are (i) the matrimonial home, which is worth £650,000 less a mortgage of £200,000, and (ii) his deemed half share in Green Lanes, which is worth £252,000. The net estate is not large enough to support both Elaine and Danielle.

(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

49. Danielle has no disability to be taken into account and is fit to work. In contrast, Elaine is past working age. It is apparent that Elaine is not well, but it is not clear what the financial consequences are of her ill health. I therefore treat her as an ordinary woman of 63.

(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.

50. A widow who claims under the Act is not limited to maintenance, whilst a child (whether or not adult) is limited to maintenance. In my judgment this distinction is a relevant factor to be taken into account under subsection (g), even where the widow is the beneficiary, not the applicant. Mr Wooding realistically acknowledged this and accepted that, other things being equal, a wife is likely to have a higher moral claim than an adult child.

Conclusion

51. Danielle has failed to discharge the burden of proving her current and future needs and resources. I am therefore unable to reach a conclusion as to whether she and Lornis are unable to make ends meet. She is capable of working and has failed to discharge the burden of proving that she is unable to obtain work. I conclude that her lack of employment is a lifestyle choice. That alone is sufficient to defeat her claim.
52. Although Elaine's evidence was not always reliable, I accept that she has sufficient money for her needs, but any surplus is modest. Any reduction in her income which is more minimal will result in Elaine not having sufficient provision for her maintenance. As regards capital, it is unreasonable to expect her to sell, or further charge, her home. Green Lanes provides the only free capital and is the source of all her income apart from her pension. Its capital value is her only security for her old age. It is therefore clear that Elaine requires the entirety of the estate to meet her reasonable needs, whilst Danielle has not satisfied me as to her own needs and resources.
53. If Danielle had so satisfied me, I would then have had to consider whether it was unreasonable for Michael to have prioritised Elaine by making the gift of 40% of his estate to Danielle conditional on Elaine not surviving. In my opinion his Will was entirely reasonable, given that Danielle is an adult who is fit to work, whilst Elaine was his wife and partner for over 30 years and is past working age.

Disposition

54. Danielle's claim is therefore dismissed.
55. I circulated my draft judgment on 4th August. The parties were unable to agree an order and made submissions in writing as to costs. Ms Julian sought indemnity costs on the grounds that (i) Danielle failed to state what provision she sought until exchange of skeletons, (ii) she failed to provide the documents or witness statements which she maintained would support her claim, (iii) that her solicitors' correspondence was needlessly aggressive and (iv) that her claim was exaggerated and her evidence was entirely disbelieved. Mr Wooding submits that Elaine's costs should be assessed on the standard basis. I agree with Mr Wooding that this case is not sufficiently out of the norm. I found Danielle to be a less satisfactory witness than Elaine, but Elaine was also not a satisfactory witness. Costs will be payable on the standard basis.
56. Mr Wooding realistically accepted that Elaine should receive a payment on account of costs but there was a dispute as to the amount. Elaine's schedule of costs states that her costs amount to some £85,000, as against Danielle's figure of about £47,000. Ms Julian asks for £42,500, being 50%, as an interim payment. Ms Julian states that the main difference between the two figures is caused by the fact that her solicitor is in the City of London, whilst Danielle's is in Taunton. Mr Wooding submits that the payment should be in the sum of £34,000, which amounts to 40%. It is understandable that Elaine would want to use a local solicitor, but I have been given no reason why she needed to go to a solicitor in the City of London, rather than in outer London. In the circumstances I order an interim payment of £34,000, to be paid within 14 days.