Beryl Anne Myers v (1) Holt William Myers (2) Frederick Hugh Myers (3) Heather Rosemary Jane Turley (4) Eileen Myers

This is an application under the Inheritance (Provision for Family and Dependants) Act 1975 brought against the estate of the late Geoffrey Holt Myers. He was born on 4 April 1913 and died on 28 July 2002. His last will dated 13 December 2000 was admitted to probate on 17 January 2003. His estate was sworn for probate at£8,360,467 gross and £8,356,400 net.

The deceased was married twice. By his first marriage, to Mary England Ella Myers, who was born on 15 March 1916, he had two children: a daughter, Beryl Anne Myers, born on 5 April 1944, and a son, Gordon Myers, born on 17 September 1946. The deceased separated from his first wife in the early 1950s. By his second marriage, to Eileen Myers, who was born on 14 October 1926, he had three children: a son, Frederick Hugh Myers, born on 21 June 1954, a daughter, Heather Rosemary Jane Turley, born on 6 December 1955, and a son, Holt William Myers, born on 31 March 1958.

The deceased left his entire estate variously to his widow and the children of his second marriage and their descendants. He made no testamentary provision at all either for his first wife, or for the children of his first marriage. The present proceedings are brought by his daughter by his first marriage, Beryl Anne Myers. Her Part 8 claim form was issued on 2 July 2003. She is, of course, qualified to bring the claim by virtue of section 1(c) of the Act.

The matter came on for hearing before me on 9 June 2004. The hearing lasted a little over three days. Ms Miranda Allardice appeared for the claimant and Mr Thomas Brudenell for the estate. In addition to reading written statements from a number of witnesses, I heard oral evidence from the deceased’s first wife (the claimant’s mother), from the claimant and from the deceased’s youngest son.

Section 2(1) of the Act empowers the court to make orders of the kind there referred to:

“if it is satisfied that the disposition of the deceased’s estate effected by his will … is not such as to make reasonable financial provision for the applicant.”

Section 3(1) of the Act, which is central to the issues I have to determine, provides that:

“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 … 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 the Act has or is likely to have in the foreseeable future;

(c)

the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)

any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)

the size and nature of the net estate of the deceased;

(f)

any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)

any other matter including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”

Section 3(3) provides that in the case of an applicant such as the claimant in the present case:

“the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of [subsection (1)], have regard to the manner in which the applicant was being or in which he might expect to be educated or trained”.

Section 3(5) provides that:

“In considering the matters to which the court is required to have regard under this section, the court shall take into account the facts as known to the court at the date of the hearing.”

It will be seen that there are two questions that I have to address:

I need not go through all the authorities to which I was referred, In re Coventry deceased, Coventry v Coventry [1980] Ch 461, Re Besterman deceased, Besterman v Grusin [1984] Ch 458, Re Hancock (Deceased) [1998] 2 FLR 346, Re Pearce (Deceased) [1998] 2 FLR 705, Espinosa v Bourke [1999] 1 FLR 747 and Re Scott- Kilvert, Robinson v Fernsby [2003] EWHC 30 (Ch), [2003] EWCA Civ 1820. On the major point of controversy almost all the relevant passages from the earlier judgments are helpfully set out by Butler-Sloss LJ (as she then was) in her judgment in Espinosa v Bourke, which is the most recent exposition of the relevant principles by the Court of Appeal.

I start with an important passage in the judgment of Oliver J (as he then was) in In re Coventry at p 474:

“in regarding the circumstances and in applying the guide lines set out in section 3, it always has to be borne in mind that the Act, so far as it relates to applicants other than spouses, is an Act whose purpose is limited to the provision of reasonable maintenance. It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases 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 – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position.”

Goff LJ put the same point more pithily at p 486:

“at times the argument came near to saying that what the court had to consider was how the available assets should be fairly divided. That, of course, is not the position under the Act, and is not what the court has to decide.”

Ms Allardice and Mr Brudenell agree that in the context of a case such as this the relevant principles are to be found set out by Butler-Sloss LJ in the following passage at p 755 of her judgment in Espinosa v Bourke:

“Subsection (1)(d) refers to ‘any obligations and responsibilities’. Plainly those obligations and responsibilities extend beyond legal obligations and that is why, in my view, the word ‘moral’ has been used to underline and explain that the deceased’s obligations and responsibilities are not to be narrowly construed as legal obligations but to be taken into account in a broad sense of obligation and responsibility. Any other meaning of ‘moral’ (such as the distinction between right and wrong, see Concise Oxford Dictionary) would more appropriately be considered under (g). 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.”

Butler-Sloss LJ’s reference to Oliver J’s judgment in In re Coventry is to the passage at p 475 where he said:

“It cannot be enough to say “here is the 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.””

Her reference to Sir John Knox’s judgment in Re Hancock is to the passage at p 357 where he said:

“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 into 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 … 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 …

[The] argument that an adult child cannot make a successful application, unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the court to decide that the scales fall in favour of the conclusion that there has been a failure to make reasonable provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry, or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court’s conclusion that there has been a failure to make reasonable financial provision but the use of the phrase “special circumstance” does not advance the argument. The word “special” means no more than what is needed to overcome the factors in the opposite scale.”

I need not cite anything more from Espinosa v Bourke save to draw attention to what Aldous LJ said at p 760:

“Section 3(1) of the 1975 Act sets out the matter to which the court has to have regard.

It is a complete list. Section 3(1)(a) refers to ‘obligations and responsibilities’ which have been interpreted as including obligations and responsibilities not binding in law. Such can be characterised as moral obligations, but use of the word ‘moral’ has tended to increase debate and to mislead. The word ‘moral’ adds nothing to the words in this section and should be avoided.

The task of the court is that required by s 3 of the Act. It is therefore incumbent upon the court to consider all the matters referred to in subsection (1) of that section. Having done so it must answer these two questions:

(1)

Has financial provision been made for the applicant as would in all the circumstances of the case be reasonable for her to receive for her maintenance?

(2)

If not, what financial provision would be reasonable in all the circumstances for the appellant to receive for her maintenance?”

He added:

“in certain circumstances the ability of an applicant to earn may mean that an application made under s 1 will fail unless special circumstances are shown. However … the case should not be approached upon a preconceived notion that there was a heavy burden on applicants of full age. In these days where persons without qualifications find it difficult to obtain employment, the court should not approach the question of what is the appropriate maintenance with any preconceived view. All the circumstances of the applicant must be considered.”

It is perhaps worth noting why, in that case, the Court of Appeal reversed the judge at first instance. As Aldous LJ put it at p 759:

“In my judgment the judge did not consider the financial resources and financial needs of the appellant (s 3(1)(a)), nor the size and nature of the net estate (s 3(1)(e)), nor such obligations and other circumstances as arose (s 3(1)(d) and (g)).

Clearly the judge was right to take into account the promise made by the deceased to pay to the appellant the money left by her mother to the deceased, the payments made by her father both for living expenses and for improvements and the discharge of the mortgage, but the most important factor was the financial resources and needs of the appellant. That does not appear to have been considered.”

To what is set out in Espinosa v Bourke I need only add one further reference from In re Coventry. It is to be found in the judgment of Goff LJ at p 488:

“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.”

Commenting on that passage, Butler-Sloss LJ in Re Hancock at p 352 said this:

“That principle of course governs the approach of the court to the assessment required to be made by the court of the reasonableness of the provision or lack of provision. 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 and in this case towards the plaintiff are factors which it is proper to take into account under s 3(1)(g) and it is for the court to give such weight to those factors as may in the individual case be appropriate.”

I add two further points. They derive from the approach adopted by the courts when exercising jurisdiction under the Matrimonial Causes Act 1973, in particular when applying the provisions of sections 24 and 25(2) of that Act. It seems go me that, mutatis mutandis, exactly the same approach is appropriate when seeking to apply the provisions of section 3(1) of the 1975 Act. I go first to what Lord Nicholls of Birkenhead said in White v White [2001] 1 AC 596 at p 608:

“section 25(2) does not rank the matters listed in that subsection in any kind of hierarchy. The weight, or importance, to be attached to these matters depends upon the facts of the particular case.”

The other point is that made by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at p 1373:

“the exercise of the discretion under section 24 in accordance with section 25 requires the court to weigh up a large number of different considerations. The Act does not, as I have said, lay down any hierarchy. It is one of the functions of the Court of Appeal, in appropriate cases, to lay down general guidelines on the relative weights to be given to various factors in different circumstances. M v B (Ancillary Proceedings: Lump Sum) [1998] 1 FLR 53, emphasising the importance of providing the father of small children in the care of his divorced wife with accommodation in which he can receive them, is a good example of such a case. These guidelines, not expressly stated by Parliament, are derived by the courts from values about family life which it considers would be widely accepted in the community. But there are many cases which involve value judgments on which there are no such generally held views. The present case is a good example. Which should be given priority? The wife’s desire to continue to live in the matrimonial home where she can conveniently carry on her business and accommodate her sons, or the husband’s desire to return to England and establish himself here securely with his new family? In answering that question, what weight should be given to the history of the marriage and the respective contributions of the parties to the family assets? These are value judgments on which reasonable people may differ. Since judges are also people, this means that some degree of diversity in their application of values is inevitable and, within limits, an acceptable price to pay for the flexibility of the discretion conferred by the Act of 1973. The appellate court must be willing to permit a degree of pluralism in these matters.”

I can take this very shortly. I refer first to what Goff LJ said in In re Coventry at p 485:

“There have been a number of cases under the Inheritance (Family Provision) Act 1938 previously in force, and also some cases from sister jurisdictions, which have dealt with the meaning of “maintenance.” In particular, in this country there is In re E decd [1966] 1 WLR 709 in which Stamp J said that the purpose was not to keep a person above the breadline but to provide reasonable maintenance in all the circumstances. If I may say so with respect, “breadline” there would be more accurately described as “subsistence level.” Then there was Millward v Shenton [1972] 1 WLR 711 in this court. I think I need only refer to one of the overseas reports, In re Duranceau [1952] 3 DLR 714, 720, where, in somewhat poetic language, the court said that the question is: “Is the provision sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?”

What is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.”

The only other authority I need refer to in this connection is the equally well-known passage in the judgment of Browne-Wilkinson J (as he then was) in Re Dennis (deceased) [1981] 2 All ER 140 at p 145:

“In [In re Coventry] both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in Re Christie (deceased) [1979] 1 All ER 546, [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word ‘maintenance’ is not as wide as that. The court has, up until now, declined to define the exact meaning of the word ‘maintenance’ and I am certainly not going to depart from that approach. But in my judgment the word ‘maintenance’ connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure.”

The claimant’s parents, as I have said, separated in the early 1950s. The claimant and her brother Gordon went to live with their mother. In the middle 1950s they moved to Purley. In 1959 they moved to a four-bedroomed house in Purley where the claimant’s mother and Gordon still live, as does the claimant when she is in England.

Both children were educated at private schools, the claimant at Felixstowe College and Gordon at Uppingham. Having obtained three O-level passes the claimant left Felixstowe College in 1960 when she was sixteen, preferring to study for her A-levels in London at an establishment known as Davies Laing & Dick. But after only one term there the deceased wrote on 21 December 1960 withdrawing the claimant from the establishment. It was only under threat of legal action that the deceased agreed that she could resume her studies there, which she did on 3 May 1961. In the result the claimant obtained a further two O-levels and one A-level (in English). She was unable to study for a second A-level (in French), as recommended by the school, because the deceased refused to fund it. (I take these details from letters dated 31 October 1986 and 4 February 1987 the relevant passages in which I set out below.) According to the claimant, the deceased was unwilling to pay the fees for Davies Laing & Dick because, as he told her, he considered an educated woman a “danger to society” (or words to that effect). She says that the only thing he was willing to pay for was a cookery course – an offer she declined. Be that as it may, the claimant accepts that the deceased in fact paid for her to attend Purley School of Commerce and Languages for a year after she had left Davies Laing & Dick. Her working life – initially as a librarian – began in November 1962 when she was eighteen.

One of the claimant’s grievances, which I am sure has rankled with her down the years, is that unlike Gordon, who obtained a degree from University College London, she never went – as she would see it, was never allowed to go – to university. She compares her limited employment opportunities, as a result, with Gordon’s. He has made a secure and successful career in the civil service. The claimant, in contrast, seems to have had a succession of jobs during the 1960s, some of which, she says, she disliked. At times, she says, she was on the dole. Her recollection – and we are talking of course about the events of some forty years ago, many of which, I suspect, are now seen by her through the distorting lens of disappointment and some bitterness – is of a period of what she calls “constant financial worries” and, indeed, “financial destitution both of myself, mother and Gordon”. Much of the time she lived at home. Apart from her earnings, her only income was £5 a week from her grandfather’s estate, supplemented from about 1971 by a modest income she received from a small trust fund set up by her grandmother, the deceased’s mother. She had no financial support from the deceased.

In 1970 the claimant had a nervous breakdown, caused she says by the “exhausting life of destitution and humiliation which I was obliged to lead”. That, I suspect, is a significant exaggeration, but her breakdown was real enough. Her GP’s notes in July 1970 record her as having a history of “anxiety state” and she was, she says, off work for more than six weeks. She went to stay with the deceased for about two and a half weeks. In one of her written statements prepared for the proceedings she says that the deceased was “cruel and harsh in his response to what had happened” and that she had to leave “since I was clearly not safe there”. That is unwarranted. Indeed, in her oral evidence the claimant accepted that the deceased had treated her kindly. I have no doubt, however, that what the claimant saw as the contrast between the lifestyle of the deceased’s second family and the lifestyle that she, her mother and Gordon were reduced to rankled with her.

Whatever precisely it was that had happened in 1970 – and over a third of a century later it is quite impossible to reconstruct the events with any great accuracy – it is plain that they had a profound and lasting effect on the deceased. In a letter he wrote to Gordon on 24 October 1970, inviting him out to dinner when he (the deceased) next came up to London in December 1970, he said:

“I am going to make an unexpected proviso here. You are NOT to bring BERYL, your sister.”

Two years later he seems to have mellowed somewhat, for in a letter dated 26 August 1972 inviting Gordon out to dinner he said:

“You are most welcome to bring a nice little lady friend as an additional guest if you so wish, or failing that I should be pleased to welcome your sister!”

But it is clear that the events of 1970 rankled with the deceased even a quarter of a century later. In a letter from his solicitor dated 29 January 1987 (see below) the events of 1970 are referred to as involving “an unsavoury incident”. In a letter which he wrote on 20 February 1987 (see below) the deceased referred to the claimant’s “disgraceful behaviour”. In a letter which he wrote to Gordon on 18 August 1994 (see below) he referred to the claimant as having “behaved so very badly”. In a memorandum which he wrote on 26 May 1995 (see below) he referred to the claimant’s “deplorable behaviour”. It is clear that all these are references to the events of 1970. The deceased’s attitude can be contrasted with that of his own mother, the claimant’s grandmother, who in a letter she wrote to Gordon on 15 September 1970 said

“It was lovely to see Beryl this summer. She is so sweet with other people. My sister … was charmed with her … I hope Beryl is quite better & that she has found her “Cordon Bleu” interesting.”

Whatever the deceased’s feelings may have been by 1972 he was plainly mortified when in that year, and following the recent changes in matrimonial law, his first wife started proceedings for further financial relief. He was even more mortified when in 1973 she obtained, by way of further relief from the court, a lump sum of £60,000. He wrote to the claimant on 8 October 1973:

“Your mother is currently claiming on me for more cash. One of several reasons she advances on oath is that she is still having to contribute to your upkeep.

If she chooses to swear on oath, she has presumably satisfied herself that the statement is correct.

Well, lass, you had an expensive education at Felixstowe Ladies Collage. You went to a secretarial collage of your’s and your mother’s choice, and, but for your own distinctive reluctance to undertake it, I would have paid for you to go on a domestic science course. You are now 29 years of age. Don’t you think that once your mother’s cash claim is settled; presumably within a couple of weeks; that it is up to you to leave home, and make arrangements for you to live without sponging on your mother.”

A few weeks later, on 3 November 1973, he wrote in much the same vein to Gordon:

“Well, I understand the court have given your mother more cash from me than I, in my innocence, had previously thought possible!!

I think therefore it is only reasonable that I should withdraw my offer further to subsidise you or Beryl while the pair of you are living at home. Should you eventually wish to get married, you can still ask me for help with the house! …

PS You are lucky – I think I paid your allowance until the end of the year anyway!”

The claimant’s mental health seems to have remained precarious. Her GP’s notes record on 14 February 2003 “a long history of depression and anxiety since her youth.” In 1973 she attempted suicide. In about 1974 she met a man to whom she seems to have taken a shine, but the relationship petered out. It is the only romantic episode to which she makes any reference in her evidence. By the early to middle 1970s the claimant was turning to what in the event became her career: teaching English to foreigners. In 1974 she obtained a certificate, but found that employment opportunities were limited because she did not have a degree. She says that she wanted to train as a teacher, but the deceased refused to fund it. She continued to have what she calls a succession of different jobs.

The enactment of the Inheritance (Provision for Family and Dependants) Act in 1975 was obviously of concern to the deceased. He wrote to Gordon on 12 December 1975 asking him to visit him in early January. In the course of his letter he wrote:

“Please tell Beryl that there are a few Unilever shares in this trust, and I am prepared to meet her and discuss giving her a trifle of these, if she would like to spend a day coming down to Spalding for lunch. Perhaps she too would give me a ring. I’ll stand her rail fare”.

The deceased wrote to the claimant on 20 December 1975:

“ … We ought not to want a long discussion. Some years ago I formed a discretionary trust with a considerable sum of money which would give your Aunt Eileen an income if she was left a widow. She has now offered to forego her interest, and we are splitting the trust up.

There are 4000 Unilever shares in this trust worth something over £4 each today, which could go to you subject to certain provisions:-

The trust would have to pay Capital Gains Tax, and would have to give you some cash on top of the shares so you would undertake to pay Capital Transfer Tax yourself.

I don’t think once I have educated you children, that any of you can have further legal claims on me, but if you receive these shares, I should previously require a signed statement from you that you undertake not to make any further claims of any sort on me, Auntie Eileen or our three children. We don’t want any more lawyers beanfeasts.”

Gordon went to see the deceased on 6 January 1976. He agreed to, and did, sign a document providing that, in consideration of the transfer to him by a family Trust of some sixty acres of tenanted farmland, he undertook to accept such conveyance

“in exoneration of any claims I may have against the Trust, the estate of Mr G H Myers, the estate of Mrs Eileen Myers or against any other member of Mr G H Myers’ family and … on behalf of myself and any dependants I may have not to pursue or to prosecute any such claims.”

It is apparent from a draft prepared at the same time by the deceased’s solicitors that his intention was to invite the claimant to sign a similar undertaking, the consideration in her case being a transfer of 4,000 Unilever shares. But the account she received from Gordon of his visit persuaded her not to go, as arranged, to see her father on 10 January 1976. She told him that she would not be going to see him. In fact by a deed of appropriation dated 6 February 1976 and a deed of appointment dated 9 February 1976 the deceased nonetheless arranged for 3,500 Unilever shares to be put in trust for benefit of the claimant, the trusts, as I understand it, entitling her to receive the dividends but without giving her power to sell any of the shares.

The claimant seems to have taken these events very badly. She was by January 1976 an established civil servant – a clerical officer – but threw up her position because, as she puts it, she was “too upset to stay in England as a result of these events”. She went off to Spain for about ten weeks and returned to England in July 1976 with, as she puts it, her general health and sense of well-being considerably restored. Her evidence, both written and oral, is far from clear, but the impression I have is that she continued for the next four years with a succession of unmemorable jobs.

In 1979 the claimant’s grandmother gave her £5,000. The claimant wanted to take advantage of a first-time buyer’s mortgage scheme then being run by the GLC and asked the deceased if he would provide her with the further £5,000 she needed. He refused to assist unless she signed a disclaimer, which she was unwilling to do.

On 10 April 1980 the deceased wrote the following memorandum:

“If my will is to be contested, I would like to put on record the considerable love, affection and even help with my business I have received from my wife, Eileen. But for her, and the thought of our then small three children, I doubt whether I should have had the will to recover from my stroke in 1965. She has done a great deal for me, and has been well supported in differing ways by all three of our children, Fred Heather and Holt.

Since family differences forced the sale of our good business, Leverton Group Ltd in 1970, I have invested my money in building up two good farming enterprises. Both Fred and Holt have been working well to learn farming, and one son is now working in each company.

Fred, Holt, Heather, and indeed Gordon, all seem to be trying to do something useful in the world. My eldest daughter, Beryl, has never done anything for me. I found the money for her to have an expensive education, but rather than put it, or any notional ability to use, she seems to prefer to be a sponger.

When I have offered anything to Fred, Holt, Heather or Gordon, all have shown appreciation. I have received no thanks from Beryl.

Some years ago I gave Gordon the ownership of some agricultural land, let to a prominent South Lincolnshire farmer, on condition that he did not worry me or my wife and children for anything else. He thanked me and the transaction was happily concluded. I offered Beryl about the same value in Unilever shares; got a brief note in return; no thanks; she was going to see a lawyer to try to get more. I put some Unilever shares in trust for her. She knows she can have these outright if she pays offer her lawyer, and undertakes not to trouble other members of the family further.

The farming businesses I have developed were comprised of a number of smaller units, originally short of capital investment and all either making little or no profit.

Fred and Holt are obviously going to have to find considerable sums for my death duties, which will probably be met by selling off part of these enterprises. I hope they are not obliged to sell so much that the residue again becomes unprofitable.

I think I have made a reasonable settlement for Beryl, particularly as she has never thanked me or done anything for me. I hope my trustees will release the whole settlement to her, just as soon as she pays off her lawyer, and declares she will not trouble any other member of my family further. My understanding is that unlike other [word illegible] bequests, capital transfer tax is not payable on Beryl’s settlement.”

In September 1980, and with the assistance of her grandmother’s money, the claimant, as she puts it, “managed to break away” and moved to France, where she has lived and worked ever since. Finding it impossible to work there as a secretary, she took French courses and then started teaching English in Paris as a foreign language. In 1982 she obtained what she says was an “excellent” teaching position in an École Supérieure. Down the years she has had a number of such jobs.

According to the claimant, following her refusal to sign the disclaimer in January 1976 it was made clear to her by her step-mother that she would never again be welcome at the deceased’s house. And certainly she seems never to have stayed there again, even for a single night. Be that as it may, it seems that until about 1979 or 1980 she continued to see the deceased from time to time on the occasions when she went to see her grandmother. Those visits ended, when her grandmother moved to Devon, in about 1979 or 1980 (the grandmother died in 1984). Certainly, after she left for France in 1980 the claimant did not see the deceased again until 1994.

In 1984 the deceased gave Gordon an outright gift of 3,222 Unilever shares. It may have been in connection with this that the deceased on 15 February 1984 wrote the following letter to his solicitor:

“RE: MY DAUGHTER BERYL MYERS

1.

Beryl had an expensive education at Felixstowe Ladies College and elsewhere.

2 Some years ago I offered her outright 4000 Unilever shares, plus cash to pay any tax on the transfer if she signed a declaration, undertaking not to trouble me or my estate for more. I got no thanks from her, but a refusal to sign the form, and the information that she was seeing a lawyer instead.

I resisted the temptation, after such an ungracious reply, to give her nothing at all, and put 3500 Unilever shares in trust for her instead. To buy, to-day, these are valued over £9 each.

She has known for a long time that these can be released to her outright if she signs an undertaking to pay off her lawyer and cease pestering people.

It is really quite simple, she is still offered the choice of employing a lawyer, or having the cash now.

In addition, she has a share in an interest free mortgage on the house where her Mother lives rent free. I wished to convey this house to Beryl and Gordon’s joint ownership, subject to their mother’s life tenancy. This would have saved them paying death duties, but their mother would not accept it.

All things considered, I feel she has been reasonably generously treated. She was an attractive and intelligent young girl, and at the age of forty I feel it is quite time she decided either to keep herself, or work out what she has got to do to get a man to keep her. It is high time she realised life should not be “all take and no give”.

I am nearly 71 years old, and I have recovered from a stroke. After what I have done for my daughter, I do not see why I should have to cope further with her at her age, if all she wishes to do is throw another fit of histerics at me, and rant that as she comes from a broken home, she should be given everything. At my age, and health condition, I just do not want it. I only desire to keep clear of both her and her Mother.”

According to the claimant, in late 1984 or early 1985 she instructed solicitors to “open up lines of contact with my father” but the negotiations broke down. There appears to be no documentary record of this, unless it was this that prompted the deceased to write the following memorandum on 16 February 1985:

“Re Beryl Myers, born April 5th 1944

About 25 years ago, trying to save my children death duties, I formed a discretionary trust from which any of them could benefit. Some years later when this became subject to penal taxation, I tried to split this up to give Beryl something in my lifetime instead of waiting for the undertaker.

I think she was offered 4,000 Unilever shares outright, so long as she undertook to make no further claims on me or my estate.

I got a letter back with no thanks, but the information that she was unable to sign a declaration to make no further claims and she was going to see her lawyer. I cannot remember what the shares were worth then, but to-day February 1985, they are something over £11. In other words at to-day’s price she could have had assets worth something over £95,000, free of death duties, but she did not feel this merited thanks.

In view of her attitude, my first reaction was to give her nothing. However I knocked off a bit, 500 shares, and put the balance, 3,500 Unilever shares, in trust for her – again I got no thanks.

She had an expensive education at Felixstowe Ladies College and elsewhere, and was an attractive young girl, in most ways above average intelligence. However she does not believe in doing a darn thing for herself, me, or any one else. Her ambition seems to be confined to throwing fits of hysterics and going rushing to a lawyer presumably hoping I will pay him!

When I wished to pay for her to attend a domestic science college after leaving school, she refused to go and was supported by her mother.

Beryl and her brother Gordon, share an interest free mortgage on their mother’s house. To avoid death duties I worked them to own this house, subject to their mother’s file free tenancy. However, their mother said this was not acceptable.”

On 1 July 1986 another firm of solicitors instructed by the claimant wrote to the deceased’s solicitors. I need not quote the whole letter. It proposed that:

“in return for certain assistance at the present time, Miss Myers would be prepared to renounce ay resort to litigation on her Father’s death”.

The heart of the letter was contained in the following paragraphs:

“In the light of her poor health and low income, Counsel has advised that, in the event of her Father’s untimely death, an application could certainly be made by Miss Myers under the Inheritance (Provision for Family and Dependants) Act 1975, and a Judge would hold that the present trust income paid to her could not be considered adequate as reasonable financial provisions for Miss Myers’ maintenance in the circumstances of her Father’s wealth and standing.

Miss Myers is now 42 years old, and considers that she should be in a position to buy a modest house, run a small car and have some capital available to produce income to supplement her meagre earnings. Without seeking to emulate the status of her half-brothers and half-sister, Miss Myers feels it to be reasonable that she should al least be put in the same position as her brother Gordon: indeed, since the latter has a stable Government job with an index-linked pension, her need is considerably greater than his and we would expect a Judge to recognize this.

We understand that the gifts of capital which Gordon has had from his Father are now worth £125,000 and we therefore, consider that we should be thinking in terms of a package worth £150,000. In the light of Mr Geoffrey Myers’ wealth, that is a very modest sum, but he and his family would gain the assurance that no steps would be taken after his death that could lead to unseemly publicity. Furthermore, it has been Miss Myers’ refusal to sign any waiver previously that had lead to the present estrangement between her and her Father and, if some financial settlement can now be achieved, Miss Myers hopes that that unhappy period in her life can be ended.”

There was a telephone conversation between the solicitors on 30 July 1986 in the course of which it emerged that the deceased was thinking about giving the claimant a cottage tenanted by a Mrs Mawby and at the same time releasing the 3,500 Unilever shares to her absolutely. Eventually on 25 September 1986 the deceased’s solicitor wrote setting out his proposals:

“1 We hesitate to reject your Counsel’s Advice, but we are wondering whether he might be a little presumptuous in suggesting that a Judge would hold the present trust income as inadequate maintenance bearing in mind Miss Myers’ earning capacity and the whole question as to whether she is entitled to maintenance. However, if you would like us to consider Counsel’s opinion would you let us have a copy?

2

I am not sure the trust was to provide reasonable financial provision for Miss Myers’ maintenance as you put it. It was a present from a father to a daughter and a very nice one too, but I think it would be wrong to assume that it was designed necessarily to provide full maintenance although I suppose the capital has produced quite a pleasant income. In this particular case father has never maintained daughter since she finished with education and further education and was due to enter the world and do some work.

3

It seems unfortunate that we should be thinking in terms of a claim under the 1975 Inheritance Act, but at the moment we cannot accept that in the event of Miss Myers surviving her father she would have any claim at all.

4

We are sorry to hear of Miss Myers’ sciatica, but we do not think this should detract from the fact that it might have been better if she had had a job or career like most others. Earning of about £1,700 per annum over the three years before age 42 and even prospects of increasing this to £5,000 per annum if practising and obtaining a diploma in England, hardly seems to do her justice. Her excellent education at Felixstowe and at secretarial collage should have enabled her to obtain many different types of jobs.

5

We repeat that if Miss Myers is prepared to make no claims after his death, thus avoiding some trouble for his family, Mr Myers will ask the trustees to release the Unilever shares now and to have Mrs Mawby’s dwelling put in her name. Recently the shares were worth £66,500. They may be a trifle lower today but no tax need be payable on putting them in your client’s name. The dwelling occupied by Mrs Mawby is insured for $42,082. We do not propose to supply you with copies of any documents at this stage although of course we will review this should Miss Myers be interested in pursuing this matter. We understand the dwelling to be in good condition, we think Mrs Mawby lives there alone, and she is probably in her seventies.”

On 3 October 1986, and before he had had any substantive response to that letter, the deceased made a will. By clause 11 of that will he gave the cottage occupied by Mrs Mawby to the trustees of the claimant’s Unilever shares, to be held by them for the claimant on the same trusts as applied to the Unilever shares. Clause 2 of the will read as follows:

“I would like to record how much I owe to my dear wife Eileen Joan Myers without whose loving care and help with my business affairs while I was ill I would never have had the will to recover from my stroke in 1965. I am also pleased with the way my two sons have carried on managing my two farming companies and with my daughter Heather for helping as much as she can.”

The claimant’s solicitors responded to the deceased’s letter of 25 September 1986 on 31 October 1986, indicating that the claimant was “certainly interested in your offer” but raising a query about the possible application of the Rent Act to Mrs Mawby’s tenancy. Referring back to paragraph 4 of the letter under reply the claimant’s solicitor observed that:

“with regard to Miss Myers’ education I have to say that when she was sixteen she left Felixstowe with 3 ‘O’ level passes and went to Davies Lang & Dick. Your client had to be forced by legal action to maintain her there to obtain two more ‘O’ level passes and one ‘A’ level pass. The school recommended a further ‘A’ level course in French but your client refused to pay for it.”

This drew a pained response from the deceased’s solicitor in a letter dated 11 November 1986:

“Your letter of 31st October arrived on the 5th and I have now seen Mr Myers. Naturally he was not very pleased to read the allegations in your opening paragraph and he pointed out to me that he never refused to pay for Beryl’s education or any part of it. He told me how her departure from Felixstowe came about but it will not help matters if I repeat the story here.

His initial attitude was that it might be better to withdraw the offer altogether. I reminded him that he had left what we call Mrs Mawby’s house to the trustees of Beryl’s fund in his will, and he is willing still to make it over to Beryl now, on the terms you appreciate, but he asks if we can settle the matter quickly if we are going to settle it at all.”

On 28 November 1986 the claimant and her solicitor visited Mrs Mawby’s cottage. On 10 December 1986 the claimant’s solicitor wrote to the deceased’s solicitor. I think I should set out the letter in full:

“I refer to your letter of 24th November 1986 enclosing a copy of Mrs Mawby’s lease which reached me in time for me to study it in the train to Peterborough on Friday 28th November.

We had a pleasant visit to Ryhall. Mrs Mawby keeps the bungalow in very good order, although she finds the garden too much for her. Despite this, she appeared in excellent health and showed no sign of any inclination to go to live with either of her daughters, one of whom lives in Canada and the other in South Wales. Both Beryl and I formed the impression that Mrs Mawby would be more than likely to be still living at 18 St. Johns close in twenty years’ time.”

That was a prescient observation. Mrs Mawby is still alive and in good heath today. The letter continued:

“For this reason, your client’s offer to “throw in” the bungalow really makes no sense from Beryl’s point of view. It produces no income and would be a virtually unsaleable asset, whereas what Beryl needs is capital to assist in home-buying now. not in X years’ time.

Had the bungalow been saleable for its insured value, the combination of that and the Unilever shares might have produced an offer in response to which Beryl might have been prepared to give the undertaking which your client seeks. I am therefore instructed to suggest that if your client would make over cash or marketable investments of a present value sufficient with the present value of the Unilever shares to give Beryl a capital sum worth somewhat more than the present value of the investments which Gordon has received from his Father, then he would obtain the necessary protection from Beryl against any litigation against his estate after his death.”

That last paragraph is not altogether clear, but bearing in mind that the insured value of the cottage was some £42,000, that the shares were then worth about £80,000 and that the assets Gordon had received were worth about £125,000, it would seem that the claimant was looking for “somewhat more” than the latter figure – albeit perhaps rather less than the £150,000 that had been suggested in the letter of 1 July 1986. The letter concluded:

“I am further instructed to say that Beryl genuinely wants to have a reconciliation with her Father and to this end she would urgently like to meet him privately before he reaches any decisions on this letter. Please ask your client if he would arrange this direct as soon as possible. Beryl’s address and telephone number are … ”

The response from the claimant’s solicitor was dated 29 January 1987:

“I write to acknowledge safe receipt of your latter dated the 10th ultimo and I am sorry I have been so long doing so. I think it is a pity that we could not have made any progress, but clearly our correspondence might as well end.

Your client had quite a nice little nest egg provided for her and I am sure it will not have escaped your notice that it is today worth over £80,000. I think it is a pity that we could not have made a little more progress when Mr Myers was prepared to make over Mrs Mawby’s bungalow to Beryl, but there it is. Your client has clearly had in her mind for some time the prospect of her father’s death and a claim thereafter and she must do what she is advised to do when the time comes. I expect we will be instructed to oppose any proceedings.

A possible reconciliation was muted by you or one of your predecessors some months or years ago. I have not looked it up, but I think I remarked then that if a daughter over the years wanted to communicate with her father, it was completely unnecessary for her to go through two firms of solicitors. The last meeting many years ago resulted in an unsavoury incident and neither father nor daughter have shown any great wish to patch things up.”

The claimant’s solicitors replied on 4 February 1987:

“Thank you for your letter of 29th January 1987 from which I deduce that your client is not prepared to make any offer in response to my last letter. I agree with you in thinking that it is a pity that a man of your client’s wealth is not prepared to convert a “nest-egg” in the future to a viable gift in the present. With regard to the last paragraph of your letter, may I remind you of the request in the last paragraph of my last letter that your client should contact Beryl direct: it is a great pity, too, that this request was ignored – the past does not have to repeat itself.

I have hitherto not though fit, during the course of our negotiations, to refer to the first paragraph of your letter dated 11th November 1986, but I shall now do so for the record. I have not spent too much time researching old files, but I enclose a copy of a letter form your client to Messrs Davies Laing & Dick dated 21st December 1960 which withdrew Beryl from the following term. She did not resume her studies there until the start of the summer term on 3rd May 1961, as a result either of a preliminary hearing or conference with Counsel in the Temple, attended by your client and his former wife, on 25th April 1961: the relevant Court Order was dated 17th July 1961 and I enclose a photocopy.”

On 20 February 1987 the deceased himself wrote to the claimant:

“A very able lawyer once told me, “The only certainty when you go to law is the expense”.

You must have let yourself in for a pretty big bill so far. It is your job to meet it, not mine!

Many years ago, I tried to save you death duties by giving you a quantity of Unilever shares in trust. These are now worth about £82,000 & I have received absolutely no thanks, so I have no intention of giving you more. You have no chance of getting more in my lifetime & I would have though a weak case for anything except legal bills if you pester my estate for more when I am in my box.

I am now nearly 74 & have recovered from one stroke. After your disgraceful behaviour when you last descended on us out of the blue about twenty years ago, I have no desire to listen to any more of your hysterics. Furthermore, I don’t see why I should.

A daughter who has been given as generous a sum such as this, & has not even bothered to thank her father, & has done nothing for him except pester him for more, might not appear too good in court.

Please try to let this sink in.”

The claimant responded on 6 March 1987:

“Thank you for writing to me.

It could be that the difference between us is partly due to the famous invisible line that divides the North from the South in our country. For example, it would take at least the full current value of the Unilever Shares to buy a property down South in 1987, even an unpretentious one. I am enclosing an Estate Agent description of the type of house that I have been looking at in the Lewes area, illustrating only too well the difference. Indeed, one of the reasons I have been looking at houses in the Lewes area is that property prices there are still only approximately half what they would be for similar properties in London, even if, to you, they seem double by current Lincolnshire standards.

Also, what would the point be in selling the Unilever Shares when they are doing so brilliantly? You must know that I need that extra form of security. (Although I am 43 in April, I don’t like the expression “middle-aged”). Private Medical Insurance and some form of Index-Linked Pension are quite essential to my well-being. If, at any time, if my back “goes”, I will be forced to rest immobile, and would still be financially responsible for all my everyday outgoings and bills.

It makes me extremely sad to think that you could believe that I could ever not have thanked you for anything you have done for me in the past. This is totally unjust.”

There matters seem to have rested.

On 21 December 1988 the deceased made another will, cutting out the claimant and giving the cottage occupied by Mrs Mawby to his son Frederick. Clause 2 of the will was expressed in somewhat sharper tones than the corresponding provision in the previous will:

“I would like to say how much I owe to Eileen my dear wife for thirty-five years I was fortunate to meet her for the first time shortly after I had managed to get divorced from a most unfortunate first marriage She has altered my life for the better ever since But for her loving kindness I don’t think I would have recovered from a stroke in 1965 I have also had much satisfaction from the way she brought up our three children Fred Heather and Holt all of whom seem to be trying to lead a useful lives.”

Nonetheless in February 1989 the deceased decided to give the claimant the 3,500 Unilever shares absolutely. That was effected by a Deed of appointment dated 10 March 1989. Originally there had been 3,500 25p ordinary shares, but by the time the trustees came to execute the Deed those shares had been split, five for one, so there were by then 17,500 5p ordinary shares. They were then worth £93,800 (closing price on 10 March 1989 of £5.36) making no allowance for the incidence of capital gains tax.

There is nothing to indicate what prompted this but on 14 May 1993 the deceased executed a statutory declaration stating:

“1 I am of sound mind.

2

I last saw my daughter Beryl many years ago.

3

I do not wish her to benefit in any way from my estate.”

On 29 April 1994 he executed a memorandum addressed “to Whom it May Concern”:

“I would like to point out that my daughter Beryl has benefited from certain Unilever Shares settled by me some 30 years ago. A life interest was appointed to Beryl in 1976 by the Trustees of the Settlement and in 1989 the Settled Funds amounting to 17,500 5p Ordinary Shares in Unilever Plc (worth at that time £93,800) were released to Beryl.”

Some fifteen years had passed since the claimant had last seen the deceased, and there seems indeed to have been very little contact between them in the meantime, when she decided to visit him out of the blue and unannounced on 12 August 1994. The claimant stayed overnight in a hotel and returned to London the next day, having both dined and lunched in the hotel with the deceased. The deceased’s reaction appears from a letter that he wrote to Gordon six days later on 18 August 1994:

“… We were rather astounded a few days ago when without warning Beryl turned up with her friend Joan after a lapse of a quarter of a century since her last visit when she behaved so very badly.

She has filled in the interim with letters from a variety of lawyers suggesting that, as she did not wish to use her natural advantages to do anything for herself, her aged father & brothers should work to keep her. The logic did NOT impress me.

She now has another story, that she can survive on the interest of the considerable sum of assets I transferred to her free of tax, before Capital Transfer Tax became law. That seemed another way of telling me that while I can be happy about what was given to you and my three other children, what I gave to Beryl has done harm, as it has just assisted her to be useless.

Well, anyhow I stood them an evening meal, bed & breakfast & lunch next day in Spalding, and managed to get them on a London bound train before Beryl had time for more hysterics.

All best wishes I hope you were making progress with a possible future wife!”

1970 may have been the last time the claimant had visited the deceased at his home, but it was not, of course, the last time they had met. That was in 1979 or 1980.

On 26 May 1995 the deceased wrote another memorandum:

“My daughter Beryl has an expensive education at Felixstowe Ladies College and elsewhere at places of her mothers choosing.

In her twenties I put a considerable sum in shares in trust for her, as I was, correctly, anxious to anticipate the chance of Capital Transfer Tax.

This has proved a bad error on my part. Beryl’s object in life seem to be to avoid doing anything for herself or anyone else, and the income she has been getting from this trust has only encouraged her.

After some deplorable behaviour in her past, when she suddenly descended on us out of the blue, perhaps about 25 years ago, I waited for her systems to quieten and then told her the natural cure was that she needed regular sex. At her request I took her to the doctor, who has since told me quietly he felt the same way, but did not feel he was in a position to say so. In any case as this was not what she wanted to hear, I imagine she paid no attention.

She has preferred to continue hysterics rather than do something for any man. She was an attractive young lass but has avoided either getting married or keeping employment.

I definitely do NOT wish her to have any more out of my estate. I do not think that it would do her any good if she got it.”

The next time the claimant saw the deceased following her visit in 1994 was in November 1998. Again she stayed overnight in a hotel before returning to London the next day. On her return to Paris she sent the deceased a postcard: it is dated 12 November 1998. She followed this up with a Christmas card. On 19 April 1999 she sent him a belated birthday card (his birthday was on 4 April). On 14 April 2000 she sent him another somewhat delayed birthday card.

The deceased does not seem to have responded to any of these communications – if he had I am sure that the claimant would have been as careful to keep his replies as she had been careful to make and keep copies of the cards she was sending him. But on 19 May 2000 he made another will. Again, it made no provision for the claimant. Clause 2 was in the same terms as the corresponding clause in his previous will.

On 15 June 2000 the claimant again went to see the deceased, meeting him for lunch at the hotel. The deceased apparently asked the claimant when she was going to get married, told her that her half-sister Heather was very happy in her marriage and said that she should follow her example. On 27 June 2000 the claimant sent the deceased a postcard from Paris. On 13 December 2000 the deceased made his last will. Again, it made no provision for the claimant and again clause 2 was in the same terms as the corresponding clauses in his previous wills. On 21 December 2000 the claimant sent him a Christmas card.

The claimant saw the deceased for the last time on 16 March 2001, this time together with her step-mother Eileen and her half-brother Holt. They had lunch in the hotel where the claimant was staying. The deceased, according to the claimant, was extremely happy to be having lunch with her. On 10 April 2001 she sent him a birthday card. She spoke to him on the telephone on 25 November 2001 (and made a note of the fact that she had done so!). At Christmas she sent him a present. He wrote to her on 12 January 2002:

“Many thanks for your Xmas present. Eileen who reckons to be my expert adviser on operating anything – sometimes she is correct – tells me that even if we do not have the right apparatus for your present, she is sure Holt has, so he and hs four little girls can make good use of it!

The best present you could give me would be the improbable news that – although it is now late in life, and you have missed your opportunity of getting married at an age where you could now hope to have both a husband & children, who cared for their wife & mum; that you have now found a man who cares for you and you for him, who is prepared to keep you in return for you giving him a pleasant home to come back to!!”

It is the last document we have from the deceased.

The claimant did not reply until on 14 April 2002 she sent him a birthday card. She wrote again on 22 July 2002, having heard from Gordon that the deceased had “almost come a cropper”. Six days later he died.

The claimant accepts that in the earlier years the deceased’s feelings towards her were affected both by the events of 1970 and by the fact that her mother had pursued him – successfully – for further financial provision. She sees her step-mother as a malign influence who did not want the deceased to see her. She even goes so far as to say in one of her written statements prepared for the present proceedings that:

“in later years it was necessary for my father and myself almost to conspire together to create opportunities and stratagems for meetings between us which would ensure that my step mother could not prevent them taking place. We had to meet and even communicate in a clandestine manner.”

She says that in earlier years the deceased had entertained the hope that she would become independent and eventually marry.

She says that after their meeting in 1994 the deceased’s perception of her circumstances began to change and that his attitude softened towards her. She says that the deceased’s attitudes towards women and their place in society also changed over the years as indeed society changed. She asserts, as she put it in her first written statement, that the deceased

“by implication conceded that I had not been adequately provided for certainly during the conversations that I had with him from 1998 onwards and that it was necessary for me to be provided for and I had been led to believe that this would be done [emphasis added].”

In her second written statement this had become:

“my late father was clearly extremely concerned that I on the one hand was financially vulnerable and that he on the other was able and willing to overcome that vulnerability [emphasis added].”

In her third statement, having observed that her half-siblings are all millionaires as a result of what they have had from the deceased, she said:

“I consider that it would be my late father’s concern to ensure that I too was provided for in a manner and to an extent which came closer to being commensurate with the provision made for the Defendants in the circumstances.”

Those allegations are notably lacking in particularity. In fact, in her oral evidence the claimant had to accept that the only words to any such effect ever spoken by the deceased were when, both on 15 June 2000 and again on 16 March 2001 (and possibly on other occasions), he said “I know that you have only got your grand- father’s money dear”. I do not see how the claimant can possibly read into what her father said what she affects now to believe.

The claimant’s attempts to persuade me that the deceased’s attitude towards her softened in his last years was unconvincing. It may be that she has persuaded herself that he mellowed but I think she is looking back through rose-tinted spectacles and seeing her father as she would like to remember him rather than as he actually was. On this, as on other points where their evidence differed, I found the evidence of her half-brother Holt much more measured and convincing.

Holt in effect spoke for all the defendants. His evidence was noticeably free of any rancour. It was reliable and I accept it. He said, and I accept, that none of the defendants bears the claimant any ill will, though he says that her evidence paints an unfair and inaccurate picture of his mother, the claimant’s step-mother. He provided two pen portraits of the deceased which I accept: in fact they are, in significant respects, accepted by claimant. In his first written statement he said:

“My father spoke openly about his feeling for Beryl towards whom he was not well disposed. He held very firm views that Beryl had not taken advantage of her private education; that she had not married or carved out a career for herself; and that she had never used wisely the wealth she had been given.

Until his death I generally saw my father on a daily basis. I enjoyed a very close relationship with him and he often confided in me. As a result of our various conversations a constant theme emerged so far as my father’s feelings towards Beryl were concerned. They were:

(i)

My father was firmly of the view that he had, during his lifetime, fully and properly discharged all and any of his obligations to Beryl (and indeed Gordon too); and that Beryl was no longer his responsibility;

(ii)

My father fully expected Beryl to challenge his Will, an expectation which further heightened his antipathy towards her;

(iii)

My father regularly complained that Beryl had in the past behaved towards him and my mother in a deplorable fashion.”

He added:

“my father would not be swayed and he maintained, until his death, that Beryl had behaved towards him and my mother in a deplorable fashion; and that she merely saw him as a means of funding what he regarded as an indolent lifestyle.”

In a second statement he supplemented that in a passage which, although long, I think I should set out in full:

“My father was very forthright in expressing his views; and once he had fallen out with someone it was, generally, for all time. My father was old-fashioned in his approach to life. For example, he firmly held the view that the woman’s place was in the home. He also maintained that industry and gratitude were commendable virtues. It thus irritated my father that Beryl never married and had children; and that having chosen to pursue a career he felt that she failed to establish a worthwhile or successful occupation.

It gives me no pleasure to make this statement, but out of respect for my father and his well established wishes and feelings I feel I am unable to fudge the issue any longer. My father had little time for Beryl or his first wife. Anyone who well knew my father will be able to vouch for this fact.

My father fully expected Beryl to challenge his Will, an expectation which merely served to reinforce his antipathy towards her and her lifestyle.

A common theme emerged whenever my father discussed Beryl, namely that his antipathy towards her was borne out of:

(a)

his disappointment that she had not made the best of the opportunities she had been given;

(b)

his annoyance at the way Beryl had behaved towards him and my mother – conduct which he frequently described as “deplorable”;

(c)

Beryl’s lifestyle, which he regarded as indolent. My father often complained that Beryl, “had never held down a job” and that, without just cause, she “spent too much time on a psychiatrist’s couch”; and that Beryl has a propensity to “run off to a lawyer and swear the first thing that came into her head”.

(d)

his dismay that Beryl did not appreciate, nor make good use of, the significant financial support he and his family had provided for her; and.

(e)

Beryl’s ungracious attitude towards what she felt was my father’s duty to provide for her in life, and after his death.

My father made plain to me that he would not provide further for Beryl and it was no surprise to discover his last will, dated 13th December 2000, gave effect to his often stated intentions in that regard. My father believed that he had already fully discharged his obligation towards Beryl when, on 10th March 1989, Trustees acting on his instruction appointed 17,500 shares in the issue capital of Unilever Plc, to Beryl absolutely. These shares were then worth about £93,800; then a substantial gift by anyone’s reckoning.

Despite Beryl’s assertions to the contrary my father’s attitude towards her did not soften as he grew older and his health declined. Until his death my father had nothing good to say about Beryl. Indeed, he was highly suspicious of her actions and motives. My father expressed to me the view that Beryl’s dealings with him were not borne out of any natural love or affection, but rather were undertaken in support of her intended claim against his ultimate Estate.

Beryl alleges that my father was concerned about her claimed financial vulnerability. He was not. My father was firmly of the view that Beryl had squandered many opportunities and that he owed her no further obligations nor intended to make any further provision for her. I believe that Beryl’s “sins”, in the eyes of my father, may have been lessened had she married. However, Beryl’s assertion, made in her second Witness Statement, that my father “hoped that [she] would marry which meant that he would then be able to bestow a final provision on [her] and [her husband to be] as his blessing upon [their] marriage”, is conjecture. Beryl never married during my father’s lifetime.”

I accept that account, which in large measure is borne out by the many writings of the deceased down the years that I have quoted. I should make clear, as Holt did in his evidence, that the words “indolent” and “sins” are his, not the deceased’s; but as he told me, and I accept, they accurately reflect the deceased’s attitude towards the claimant.

The claimant’s primary inheritance is the Unilever shares she was given by the deceased. She also stands to inherit an interest in her mother’s house.

As I have said, in 1976 when the deceased settled the Unilever shares on the claimant there were 3,500 25p ordinary shares, but by the time the trustees came to execute the Deed of appointment in 1989 those shares had been split, five for one, so there were by then 17,500 5p ordinary shares. They were at that time worth, as I have said, £93,800. On 13 October 1997, those shares were in turn split, four for one, so that had the claimant kept her portfolio intact she would have had a total of 70,000 1.25p ordinary shares. In fact by 1999 the claimant, as a result of sales she had made, had only 44,030 shares: I have no details of the dates or amounts of the sales, save that in March 1990 her financial situation was such that she was obliged to sell 300 shares. On 10 May 1999 the shares were consolidated, 100 new 1.4p shares replacing 112 old 1.25p shares. Thus the claimant’s 44,030 old shares were replaced with 39,312 new shares. On 19 September 2001 the claimant sold a further 4,500 shares, raising £25,467.55 but leaving her with only 34,812 shares.

Thus, by the date of the deceased’s death on 28 July 2002 the claimant had 34,812 shares, whereas had she retained the portfolio intact she would have had 62,500 (= 70,000 x 100/112) shares. When the deceased made his will on 13 December 2000 the portfolio, if it had remained intact, would have been worth £325,000 (closing price on 13 December 2000 £5.20). Just before the deceased’s death – he died on a Sunday – the market had closed at £4.97 (closing price on 26 July 2002). The claimant’s portfolio was therefore worth £173,015; had it been retained intact it would have been worth £310,625. (These figures, of course, are a snapshot on a particular day and again make no allowance for the incidence of capital gains tax. On 29 July 2002, the day after the deceased’s death, the closing price had risen to £5.14, making the claimant’s portfolio worth £178,933.) Since the deceased’s death the claimant has sold more shares: 1,700 on 11 October 2002 for £9,922.07; 950 on 30 May 2003 for £5,296.83; 1,500 on 9 September 2003 for £7,885.20; 2,000 on 12 February 2004 for£10,427; and 1,500 on 23 April 2004 for £7,938 – a total, since the deceased’s death, of 7,650 shares raising £41,469.10. The result is that the claimant now has 27,162 shares which, at a closing price of £5.25 as at the date of the hearing (11 June 2004), are worth a total of £142,600.50; had her portfolio been maintained intact she would have had 62,500 shares worth a total of £328,125.

The claimant’s mother lives in the house which has been the family home since 1959. It was purchased with money provided by the deceased, albeit, as we have seen, it was at her insistence vested in his first wife rather than in his children as he had wished (see the deceased’s letter dated 15 February 1984 set out above). I am told that the claimant and Gordon each have a charge on the property as security for the sum of£1,600. The claimant’s mother has made a will leaving the property jointly to her two children. The claimant’s expectations however must inevitably be tempered by her knowledge that the property has been Gordon’s home for over 40 years and that her ability to realise her share of the property may accordingly be restricted.

I have to have regard to each of the matters referred to in paragraphs (a), (d), (e), (f) and (g) of section 3(1) of the Act. The claimant is the only applicant, so I can ignore paragraph (b). The defendant children defend the claim explicitly on the basis that, although they each have significant financial obligations and responsibilities towards their respective families – all three are married and have children –, they are all financially secure and are able to meet any reasonable award made in the claimant’s favour. They have in fact, by a Deed of Agreement dated 8 April 2003, agreed to share equally the burden of meeting any award made in favour of the claimant. So they put forward no case under paragraph (c). The only relevance of paragraph (c) therefore – but this is an important point – is that there is no need here to balance the claimant’s needs against the defendants’ needs: this is an estate where there is more than enough to meet the needs of all parties. I turn to the remaining paragraphs.

The claimant’s financial resources: The claimant’s only assets of any value are her shares – worth, as I have said, £142,600, without making allowance for any capital gains tax that might be payable. She has no other savings. She has the possibility of inheriting half of her mother’s house. That is all. She lives in a very small rented studio flat in Paris. It consists of a single room and an entrance lobby which contains a cooker and off which there are a WC and a shower. For all practical purpose she has no furniture or household equipment to call her own.

The claimant has substantial liabilities. Her legal costs to date amount to £58,369.70, of which she has thus far paid £29,906.40. The balance, therefore, is £28,463.30. Her debts, apart from unpaid legal costs, comprise the outstanding balances on various credit cards amounting to some £32,777. I do not know what her credit card debts were when the deceased died, but two months later, in September 2002, they amounted to £5,547, so since then she has spent some £27,230. Some £6,000 of this represents payment of her legal costs, the remaining £21,230, as I understand it, has gone on general living expenses. Of the total of £41,469.10 which the claimant has realised from the sale of her shares since the deceased’s death, something of the order of £23,900 has gone in payment of legal costs and the remaining £17,500 or so in general living expenses. In other words, in the period since the deceased’s death – a little short of two years – the claimant appears to have got through some £38,730 in general living expenses.

The claimant has not been employed or had any earnings since about 2002. At that time she was self-employed. Her income in the year ended 5 April 2001 was £702 which, after deduction of £329 expenses, left her a taxable profit of £373. Her income in the following year was £323 which, after deduction of £546 expenses, left her with a loss of £223. Since then there has been nothing. She has been living on the income of the Unilever shares, supplemented, as I have said, by selling some of the shares and running up substantial credit card debts. Following her sixtieth birthday on 4 April 2004, the claimant has qualified for the state pension, £71.54 per week. Her remaining shares generate an income of approximately £4,000 per annum.

The claimant’s financial needs: The claimant formulates her financial needs under five headings: (i) housing; (ii) the cost of equipping a new house (or flat); (iii) payment of her debts; (iv) living expenses; and (v) a ‘one-off’ insurance premium to cover the costs of future care. I shall deal with these in turn:

The deceased owed the claimant the ordinary obligations of a father to an adult and fully emancipated daughter. He did not owe her any special obligations or have any particular responsibilities for her unless arising out of what he knew or ought to have known of her financial, personal and medical circumstances at the time he made his last will – a topic I return to below. It is not suggested, given the size of his estate, that the deceased had any special obligations or responsibilities to his other children that need to be put in the balance.

The deceased’s estate is very large and, as I have said, there is more than enough to meet the needs of all parties.

The claimant, as I have said, has a long history of depression and anxiety since her youth. She had a nervous breakdown in 1970 and attempted suicide in 1973. At present she is on anti-depressants because of the stress induced by these proceedings. She also suffers from back problems – though they are not as serious as she would have it – and will also need a total left hip replacement at some time in the future. A medical report dated 31 March 2004 prepared by a jointly instructed expert – Mr Jonathan Jones, a Consultant Orthopaedic Surgeon – shows that her back problems date back for over 20 years. But he is clear that the claimant does not require permanent and regular treatment. She will require intermittent conservative treatment for the symptoms of her mechanical back problems as and when they occur. She will not require surgical treatment, but physiotherapy, chiropractic treatment or acupuncture. He says that the claimant will be able to undertake sedentary work without any difficulty, and that neither her back nor her hip problems would preclude this.

I have already dealt with this in the course of setting out the relevant history.

Am I, within the meaning of section 2(1) of the Act, satisfied that the disposition of the deceased’s estate effected by his will is not such as to make reasonable financial provision for the claimant? Or, putting the question the other way round: Has financial provision been made for the claimant as would in all the circumstances of the case be reasonable for her to receive for her maintenance?

In my judgment the claimant succeeds. I am satisfied, in all the circumstances, that the deceased’s will did not make reasonable financial provision for her maintenance.

Mr Brudenell had powerful arguments in support of the contrary view. He was able to show that the deceased had made substantial financial provision for the claimant during his lifetime by giving her shares which, if she had retained them, would have been worth no less than £310,000 when he died. It is equally the fact, as I find, that the claimant has made much less of her life than she might have done. Many unmarried women entering the job market in 1962 with qualifications no better than the claimant’s have been able to achieve much more than she has ever done and, more to the point, been able to make much better provision for their retirement and old age than the claimant has been able to achieve. Moreover, the claimant has not simply been the victim of fate and misfortune. Some at least – I suspect many – of her wounds have been self-inflicted. After all, in January 1976 she threw up her position as an established civil servant.

Nor can the claimant assert a claim merely because the deceased’s reasons for cutting her out of his will may have been – were, as Holt accepts – old fashioned. Insofar as it is any 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 probably 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.

Nonetheless the claimant can point to a number of factors that taken together, and assessed against the background of all the matters referred to in section 3(1) of the Act, suffice, in my judgment, to tip the balance in her favour – to adopt the metaphor used by Sir John Knox. As section 3(1) requires me to, I have of course had regard to all the relevant matters, including but not limited to all those matters to which I have made specific reference in this judgment. But it is the following matters in particular that, taken together, seem to me to tip the balance in the claimant’s favour:

Given that the first question has been answered in the claimant’s favour, the remaining question is: What financial provision would be reasonable in all the circumstances for the claimant to receive for her maintenance?

The claimant needs accommodation. It is common ground that it should be a flat. In all the circumstances it is, in my judgment, reasonable for the claimant to go on living in Paris, even though the evidence indicates that housing there is somewhat more expensive than in Surrey. Paris, as I have said, is her pays de coeur. On the basis of the evidence, and applying the Re Coventry principle that the claimant is entitled to a decent and comfortable though not a luxurious standard of living, I conclude that she will need £275,000 to acquire a suitable flat in Paris.

There is a dispute between the parties as to whether this sum should be awarded to the claimant outright or merely settled on her for life. In principle, in my judgment, it should be the latter, for the purpose of the Act is not to award legacies or to make capital provision for claimants, however deserving, but simply to make provision for their maintenance. The sum of £275,000 will, accordingly, be settled on trust for the claimant for life, with remainder to the deceased. There will be two trustees: one to be appointed by the claimant and the other by the executors of the deceased’s estate. The claimant will be entitled to require the trustees to invest the fund in a property, either in France or in this country, to be occupied by her rent free as long as she wishes; and she will also be entitled to require the trustees to sell the property and buy a substitute property to be occupied by her on the same terms. If a time comes when she is unable to go on living in her own home the income of the fund will be available to meet the costs of supported housing or residential care. The claimant is concerned that with her heredity – she told me of members of her family who lived into their nineties and in one case well past one hundred – she may be left financially insecure in her extreme old age, particularly if she is not able to have recourse to the capital of this fund to meet the costs of her accommodation. I propose to meet this concern in two ways. First, the trustees of the fund will have power at any time in their absolute discretion to apply any part of the capital of the fund in such manner as they think fit to or for the benefit of the claimant. Secondly, and I here adopt a suggestion made by Mr Brudenell, the trustees will be required to pay the entire capital of the trust fund to the claimant if she outlives her current expectation of life, that is, rounding up the life expectancy tables shown in At a Glance 2004-2005, on her 88th birthday if she lives that long.

I accept that the claimant should have an appropriate sum for equipping her new home. At present, as I have said, she has for all practical purposes no furniture or household equipment. The sum of £30,000 she claims is unparticularised except that it includes £4,000 towards the cost of a small car. Mr Brudenell suggests that I should award £15,000. Recognising that I am driven to little more than plucking a figure out of the air – though neither party was really able to suggest any more scientific approach – I propose to award the claimant the sum of £20,000, being the sum which in my judgment is reasonable in all the circumstances.

The claimant, as I have said, seeks £32,700 to discharge her credit card debts. But as Mr Brudenell correctly points out, only some £21,250 of this represents the claimant’s living costs since the deceased’s death: she already owed some £5,500 at the date of his death and some £6,000 represents payment of her legal costs. I propose to award the claimant the sum of £21,500 under this head. The question of her costs is properly a matter for another day.

Mr Brudenell accepts that, in principle, medical insurance is a proper part of the claimant’s budget, but disputes that she has a proper claim to the costs of future care. I agree with Mr Brudenell and accordingly decline to award the claimant the sum of£24,744 she seeks as a single premium payment to BUPA. I doubt that it is properly to be treated as an item of maintenance and in any event it is not reasonable for the claimant to receive that sum bearing in mind all the other provision I am making for her.

I agree with Mr Brudenell’s analysis of the claimant’s budgets for living expenses and I agree with him that, taking everything into account, the reasonable figure is £20,000 per annum. I note in this connection, as I have already pointed out, that the claimant’s living expenses in the period since the deceased’s death – a little short of two years – seem to have amounted to some £38,730. So all in all it seems to me that a figure of£20,000 per annum is reasonable. The claimant’s shares generate an annual income of about £4,000, so her net requirement is for a sum of £16,000 per annum. That sum obviously requires to be capitalised. (I put it this way because it seems to me, notwithstanding Mr Brudenell’s submissions to the contrary, that the claimant should be credited with the income of her shares as against her annual budget rather than, as he would prefer, because it will cost the estate less, (Footnote: ¹ ) being credited with the capital value of the shares as against the capitalised cost of her annual budget. Her shares were intended by the deceased to provide the claimant with an income and it seems reasonable in all the circumstances that she should be able to keep them for this purpose.)

There was debate before me as to what is the most appropriate method of capitalising the claimant’s award of maintenance. Ms Allardice, pointing to Singer J’s judgment in A v A (Elderly Applicant: Lump Sum) [1999] 2 FLR 969, suggested that a ‘Duxbury’ calculation was not appropriate. She also referred me to the ‘Ogden’ tables. Mr Brudenell, pointing to what Thorpe LJ had said in Dharamshi v Dharamshi [2001] 1 FLR 736 at paras [5] and [11], mirrored by what Mr Nicholas Mostyn QC (sitting as a Deputy High Court judge) did in W v W (Financial Provision: Form E) [2003] EWHC 2254 (Fam), [2004] 1 FLR 494 at paras [90]-[98], said that there was no warrant for introducing the ‘Ogden’ tables into this jurisdiction, any more than into ancillary relief. Pointing to the course which had commended itself in Re Scott- Kilvert, Robinson v Fernsby both to Blackburne J at first instance and also to the Court of Appeal – see [2003] EWHC 30 (Ch) at para [133] and [2003] EWCA Civ 1820 at paras [61]-[62], [109] – he submitted that I should adopt the ‘Duxbury’ approach, taking the real return rate of 3.75% that appears in At a Glance 2004-2005. I agree. On this basis the appropriate ‘Duxbury’ figure is £200,000.

I conclude therefore that the claimant succeeds. There will be an order in her favour for (a) the settling of a sum of £275,000 on the trusts referred to in paragraph [90] above and (b) the payment to her of the further sum of £241,500 (that is, the aggregate of the sums of £20,000, £21,500 and £200,000 referred to in paragraphs [91]-[95] above).

The preceding paragraphs are the judgment in the form in which it was handed down (without the need for attendance by the parties and in fact without the parties being present) on 3 August 2004. Subsequently Mr Brudenell wrote to me suggesting that I might have misunderstood the suggestion he had made and which is recorded in the final sentence of paragraph [90] above. Mr Brudenell and Ms Allardice are agreed that the only concession he made was that the trustees should have a discretion – a power – to advance capital to the claimant (but without being under any duty to do so) in the event that she outlives her current life expectancy, that is, if she attains the age of 88. Paragraph [90], it will be appreciated, goes beyond Mr Brudenell’s concession in two respects: first, because it provides that the trustees are to have power to apply capital at any time; secondly, because it provides that the trustees are to be under a duty to pay the entire capital to the claimant if she is still alive on her 88th birthday. I readily accept that I did indeed either misunderstand or misrecord Mr Brudenell’s concession – it matters not which – and I accordingly invited counsel to make any further submissions they might wish in relation to the latter part of paragraph [90]. I am not, of course, confined by Mr Brudenell’s concession. The question is what my decision on the point should be, given Mr Brudenell’s concession, but having regard to all the circumstances and to the further submissions on the point that I have now received from both counsel.

Mr Brudenell submits, consistently with the scheme of the Act and, indeed, with the general approach I have adopted in paragraph [90], that the fund should only be applied for the claimant’s maintenance and not more generally for her benefit (cf the well established contrast between maintenance and benefit in sections 31(1)(i) and 32(1) of the Trustee Act 1925). He points out that the ‘Duxbury’ fund I have awarded the claimant ought in principle to satisfy her income needs until she is 88, so that there are unlikely to be circumstances in which it will be appropriate to make further provision for her prior to then, but he is nonetheless content to accept that the trustees should have the power to apply capital for the claimant’s maintenance at any time. But he submits that it is quite inappropriate for the trustees to be required to pay her the entire capital if and when she attains the age of 88. That, he says, will simply give the claimant what may turn out to be a very large windfall of which she may very well have no need and which she might end up giving to charity. All in all, he submits, it is enough that the trustees have a power to apply capital where appropriate in meeting the claimant’s maintenance requirements.

Ms Allardice in effect turns Mr Brudenell’s argument against him, pointing out that the ‘Duxbury’ fund will have exhausted itself by the time the claimant reaches the age of 88 and asserting that it is inappropriate to condemn someone of the claimant’s hereditary longevity to reliance thereafter upon nothing more than the exercise of the trustees’ discretion in her favour. She submits that I ought to require the trustees to make the whole of the capital available. The outright release of the capital to the claimant in this way would enable her, for example, to enter into an equity release scheme, or to ‘downsize’ and apply the surplus funds for living and care expenses, or to go into supported housing or residential care without being confined to what Ms Allardice suggests might be the unsatisfactory kind of provision that would be inevitable if the claimant were to have access to no more than the income of the fund rather than being able to access the capital as well.

With the benefit of these additional submissions I recognise the need, though only in two respects, to vary the terms of the trust as I had originally envisaged them. In my judgment Mr Brudenell is correct in asserting that the application of the fund should be confined to the claimant’s maintenance and in his submission that it is inappropriate – in fact wrong in principle – to give the claimant what may well turn out to be a windfall. On the other hand, I agree with Ms Allardice that the matter should not simply be left to the exercise of the trustees’ discretion. Accordingly, and in substitution for the provisions set out in the last two sentences of paragraph [90] above, the trust will contain the following provisions. First, the trustees of the fund will have power at any time in their absolute discretion to apply any part of the capital of the fund in such manner as they think fit for or towards the maintenance of the claimant. Secondly, from and after the claimant’s 88th birthday, if she lives that long, the trustees will be required from time to time, if so requested by the claimant, to apply such part of the capital of the fund as may in all the circumstances, and having regard to the claimant’s other resources, reasonably be required for her maintenance (including the ongoing costs of her housing or other accommodation).

There will accordingly be an order in the terms set out in paragraph [96] above, save that the sum of £275,000 will be settled on the trusts referred to in paragraph [90] as modified in paragraph [100] above.