Ilott v Mitson & Ors

This is an appeal brought by a Claimant against a decision on quantum in an application under the Inheritance (Provision for Family and Dependants) Act 1975 made by District Judge Million, as he then was, on 7 August 2007. The Respondents, three charities, now seek to uphold his original award.

The deceased was Melita Jackson and the Claimant her estranged daughter. The action was brought against the personal representatives of the deceased and the three charities the beneficiaries under the deceased’s will. The personal representatives played no part in the proceedings.

The Respondents resisted the claim. They contended that the Claimant had not satisfied the first “gateway” hurdle pursuant to the Act, namely that she had not established, in her particular circumstances, that the will did not make reasonable provision for her. The Claimant had left home in her late teens and married a man with whom she has had five children. The deceased profoundly disagreed with her lifestyle choice and an irreconcilable rift developed between them. Attempts at reconciliation were unsuccessful. District Judge Million found that the main responsibility for the rift lay with the deceased although the Claimant and her husband bore some of the responsibility for the difficulties.

The Claimant and her husband and family live modestly in a housing association house in the Home Counties. They are heavily dependent on state benefits. The Claimant does not work, and her husband’s income is small. They are in receipt of housing benefit, council tax benefit and tax credit.

District Judge Million held that the fact that the Claimant was an adult did not debar her from establishing that the will did not make reasonable provision for her. He found that it was relevant that she was of limited means. He found that the rejection by the deceased of her only child at the age of seventeen, then maintained for the rest of her life, was unreasonable. That had led to the deceased unreasonably excluding her daughter from any financial provision in her will, despite her daughter’s obviously constrained and needy financial circumstances and wish for and attempts at reconciliation. He held that the reasons given by the deceased for excluding her daughter, set out in letters written in 1984 and 2002, both contained a number of factual inaccuracies in the attempt to explain her decision, which adds to and supports the unfairness.

He referred to the judgment of Oliver J in Re Coventry [1981] CH.461. Subject to the court’s powers under the Act, a person may dispose of property in whichever way he or she pleases. But the court must decide whether,

“not just 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 the spouse, for that applicant’s maintenance.”

In Espinosa v Bourke [1999] 1FLR 747 Butler-Sloss LJ said that if an applicant is of working age, with a job or capable of obtaining a job which would be available,

“the fact that is in favour of his claim for financial provision may not be of much weight in the scales … 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 find 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.”

District Judge Million concluded that it was an “unreasonable result” that no provision at all was made at all for the Claimant in circumstances where she was in some financial need.

“However, I also accept that [the Claimant] has not had any expectancy of any provision for herself. [The Claimant and her husband] have managed their life over many years without any expectancy that [the Claimant] would receive anything. That does not mean that the result is a reasonable one in the straitened financial circumstances of the family. But it does mean, in my judgment, that any provision must now be limited.”

The judge then went on to determine, on the material available to him, that appropriate provision would be a lump sum of £50,000.

The Claimant appealed to the High Court in respect of quantum. The Respondents cross-appealed both against the determination that the will did not make reasonable provision for the Claimant and quantum. It was their case that their appeal in respect of the “gateway”, as I have called it, should be heard first. The appeal was apparently heard by Eleanor King J under some pressure of time. It was contended that if she found in favour of the Claimant in respect of the “gateway” provision then the Claimant’s appeal in respect of quantum would fall away. She accepted that argument. She allowed the Respondents’ appeal.

The Claimant appealed to the Court of Appeal. The Court of Appeal allowed the appeal. It held that the District Judge had made a value judgment applying the criteria set out in section 3 of the I(PFD)A 1975 which he was entitled to reach. He had not given undue weight to the unreasonableness of the deceased’s actions or allowed financial need to dictate the outcome.

The Claimant’s outstanding appeal was accordingly remitted to a judge of the High Court other than Eleanor King J.

These proceedings have taken an inordinately long time to be brought on. The appeal to the Court of Appeal was substantially out of time but an extension of time was given.

Mrs Justice Eleanor King’s order was dated 1 December 2009 and the decision of the full Court of Appeal is dated 31 March 2011. Steps were eventually taken to have the appeal listed. Sir James Munby P. gave directions on 7 May 2013. By that time, there had been three relevant developments. (i) Mr John Collins of counsel, who has been acting latterly on behalf of the Claimant, and who acts pro-bono, had taken the view that his predecessor’s grounds of appeal needed supplementation (ii) the Claimant had come into possession of a letter which she said required to be put before the court. That letter had on her unchallenged account only came into her possession after the hearing before the District Judge but before the appeal hearing before Eleanor King J. The Respondents accordingly submitted that it did not fulfil the relevant tests under Ladd v Marshall [1954] EWCA Civ 1 since it had been available as at the date of the appeal (iii) after the hearing in the Court of Appeal (which attracted some publicity) the Respondent’s solicitor received an anonymous letter claiming that on the basis of the report of the case it appeared that the financial position of the Claimant and her husband had been misrepresented. It was asserted that the Claimant’s husband was in receipt of income from employment which might alter the approach taken to quantum in any event.

The President determined that these matters should be heard by way of preliminary issue by the judge hearing the appeal.

The net estate was valued at £486,000. The President directed an up-to-date valuation to be prepared for the appeal. The current valuation is just under £489,000.

Judge Million summarised the position of the Claimant and her husband thus:

“they have very small income and negligible assets. They depend on state benefits to top up their income. They live in a small house rented from a housing association. The Claimant has not worked since the birth of A (her oldest child) and has brought up (and is still bringing up) the family.”

The family’s total income exclusive of benefits in 2006/2007 was £20,386, namely (1) £4,164 H’s self employed earnings (2) £1,878 child benefit (3) £8,112 tax credits (H’s working tax credit, and child tax credit) (4) £900 expenses set against H’s earnings (5) £240 notionally paid to the Claimant for her bookkeeping work with regard to H’s earnings (6) £5,092 housing and council tax benefit.

There was capital available by way of joint family savings of which the Claimant’s share was between £2,000 and £3,000. She has no pension provision.

The family’s current standard of living was low. The Claimant had never had a holiday, much of what she has is old and/or second-hand, she has difficulty in affording clothes for the children, and is limited in the food that she can buy. She set out schedules setting out what she thought would be reasonable expenditure for her to enjoy a reasonably comfortable life and what she thought would be reasonable expenditure to lift her home and its contents to a modern standard. It is now submitted on behalf of the Claimant that the Judge wrongly thought that these schedules were served during the trial but in fact they had been served with the original witness statements but updated shortly before trial. It is the case for the Claimant that these schedules were filed to demonstrate the sorts of things which were unaffordable on the Claimant’s present resources, and to assist the court in its broad brush determinations, per Re Watson deceased [1999] 1FLR 878, at 890g, as to what might be regarded as a reasonable provision beyond what the Claimant can currently afford.

The Judge found that the combined net annual value of housing and council tax benefit was £5,092, the net value to them of means-tested tax credits and benefits is £13,204 per annum (which includes £8,112 tax credit.) The Judge also found that the full cost of rent and council tax for the house would be £4,799.88 and £133.32 per year, but because of the benefits they pay the reduced sums of £912.60 and £129 per year. Thus the combined value of those benefits is £5,092.

Having found that no provision at all in the will was an “unreasonable result”, in circumstances where the Claimant had financial need, the Judge went on to say that:

“I also accept that the Claimant has not had any expectancy of any provision for herself. The Claimant and H have managed their life over many years without any expectancy that the Claimant would receive anything. That does not mean that the result is a reasonable one in the straitened financial circumstances of the family. But it does mean … that any provision must now be limited.”

The Judge rejected the case on behalf of the Respondents that if any amount were justified it would be a small sum to pay for driving lessons and to see her back into work, so that she could gain greater financial independence. The Respondents suggested a figure of no more than about £3-5,000.

The Judge states that he had to put some pressure on the Claimant’s counsel to quantify his claim. He describes what was eventually sought as “a much more ambitious case.” The Claimant sought (1) £186,000 to permit her to purchase her own home (there will be a discount under the Right to Buy provisions) (2) £53,000 to pay for a single-storey extension to the house, presently three bedrooms (3) a capitalised sum equivalent to an income of £10,000 per year for life: this was not quantified but the judge calculated that on the Duxbury tables in At a Glance a sum of £173,000 was indicated (4) some further capital sum to permit the refurbishment and re-equipment of the house after its purchase. That list produced a sum of £40,950. The Claimant also produced a proposed annual budget for the family which totalled £34,600. Taking into account H’s income from his part time earnings at £5,304 and child benefit of £1,570, this would have required, the Judge calculated, an additional annual income of £27,776. Capitalised for life for a female aged 46 years would require a sum of about £562,000 (again using At a Glance figures). The Judge commented that this exceeded the size of the estate. The Judge said that he regretted that “the Claimant’s case on these matters was presented in an ill thought-out and unhelpful way.” In his skeleton argument on the appeal Mr Smith, then representing the Claimant, states that the schedules were put forward to assist the Judge in determining what might be a reasonable maintenance figure.

The Judge commented that he had been presented with no figures which showed the net effect (after benefits and tax credit) of providing an income of £10,000 per year. Neither was he presented with figures to show the net effect of the provision of a capitalised sum which took into account the state benefits which the family receives. He said:

“I assume that the practical consequence of a large capital payment would be that the family would lose most, if not all, of their benefits. None of these consequences appear to have been thought through.”

The Judge accepted that the continuing obligations and responsibilities to the children made it reasonable for the Claimant to wish to remain at home for the time being and any work that she would likely to obtain would be limited by her lack of employment skills and the travel difficulties stemming from living in a somewhat isolated village. But he did consider it reasonable for her to attempt to support herself by some paid work during the course of the next few years. However, even with such future work, the Claimant would be likely to remain in some financial need. If both the Claimant and H work, they may continue to be entitled to working tax credits, presently £8,112 per annum. One half of that share would be £4,056 per year. He said:

“this could be said to be an indicated amount of maintenance which the government accepts as being needed currently to provide the Claimant with a reasonable, but basic, standard of living.”

Having rejected the proposal on behalf of the Respondent, he started:

“from my approximated figure of basic needs derived from the tax credit apportionment.”

Extrapolating back from his calculation as to the required sum of capital needed to produce an income of £10,000 per annum, the judge found that about £69,200 would be required to provide a maintenance figure of £4,000 per annum. He said that that was an approximation. He then took into account that the Claimant ought to be able to find some modest part time work, although he accepted that it would be poorly paid and that she is likely to continue to require state subsidises for her basic living expenses. In order to reflect that potentially reduced financial dependency, he capitalised the maintenance figure at the lower sum of £50,000. He concluded:

“I accept, indeed explicitly state, that such figure has a significant degree of approximation in it. But in the absence of any better method of calculation, it is the best that I am able to do in the circumstances.”

Mr Collins told me that his client seeks an award equivalent to half the value of the estate (therefore £240,000 or thereabouts) in order to re-house in a three-bedroom property in the area, of a better standard to that in which she is presently living. Her four older children have now left home and her 17 year-old daughter is the only child remaining. Mr Collins produced during the course of the hearing a letter from the housing association from which the current home is rented indicating that the present price of purchase, including discount, is £125,000. Ms Reed for the Respondents accepted that this should be put in but read “de bene esse”. At the very conclusion of his argument, Mr Collins said that his client sought a total payment of £150,000, to provide the purchase price together with the costs of the transfer and a modest sum to meet “some basic expenses”.

The grounds of appeal

“1.

The decision of the learned District Judge, that the sum of £50,000 was reasonable provision for the Claimant out of the estate of her mother, Melita Jackson deceased, under the Inheritance (Provision for Family & Dependants) Act 1975, was wrong as a matter of law because:

(a)

The learned District Judge erred in that,

(i)

He equated reasonable provision under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”) with the sums paid in respect of state benefits (or with 50% of the Claimant’s family’s state benefits).

(ii)

Further, having equated reasonable provision under the 1975 Act with state benefits, the learned District Judge left out of account the impact of housing benefit and council tax benefit.

2.

Having held that the Claimant and her family were in “straitened circumstances” the learned District Judge erred in that,

(a)

He sought to make provision which merely replicated the Claimant’s existing state benefits rather than improved her financial circumstances.

(b)

He failed to analyse what the Claimant reasonably required for her maintenance (other than by analogy with her entitlement to state benefits) and thereby failed to pay adequate regard to the matters set out at section 3(1) of the 1975 Act.

3.

Having concluded that the sums which the Claimant had contended might be taken into account in determining reasonable provision were excessive, the learned District Judge erred in that he did not consider further what would be reasonable provision in the light of the particular circumstances of the Claimant. In particular the learned District Judge failed to take into account or failed adequately to take into account,

(a)

The fact that the Claimant’s current standard of living is at subsistence level and that reasonable provision would require an improvement to the Claimant’s current financial circumstances.

(b)

The items of capital expenditure which the Claimant had contended should be taken into account in assessing reasonable provision under the 1975 Act.

(c)

The items of expenditure of a recurring nature which the Claimant had contended should be taken into account in assessing reasonable provision under the 1975 Act.

(d)

The fact that the Claimant had no pension provision.

(e)

The fact that the Claimant has very few savings or other capital investments.

(f)

The fact that the Claimant is dependent on the modest income of her husband, which is in itself precarious, and dependent on her husband’s continued health.

4.

The learned District Judge rejected the Claimant’s contention that reasonable provision would include such provision as would enable her to buy her existing housing association accommodation (at a discount) on the basis that such provision would relieve the Claimant of expenditure of only £912 a year. In fact, such provision,

(a)

would relieve the Claimant of a liability to pay £4,793.88 a year;

(b)

would provide a capital asset which could be realised to fund the Claimant’s future maintenance needs;

(c)

would ensure that the Claimant could continue to provide herself with accommodation in the event that she should need to or should wish to move.

5.

Insofar as he concluded that he had insufficient evidence of the Claimant’s resources or needs, the learned District Judge was wrong.”

Additional Grounds of Appeal

“1.

The learned District Judge was in error of law, alternatively of mixed law and fact, in that having correctly concluded at paragraph 67 that he could not attach importance to the fact that [the Claimant and her husband] had managed their life over many years without any expectancy that [the Claimant] would receive anything, wrongly treated this as a reason for limiting the provision for her, alternatively for reducing the provision that he would otherwise have made for her from the estate of the deceased.

2.

That the learned District Judge, having appreciated that any work that the Claimant would be likely to obtain would be limited by the travel difficulties stemming from living in an isolated village, failed to consider how the Claimant’s problems might best be resolved, in particular by enabling her to move to accommodation from which she would be able to seek employment.

3.

In the light of the additional evidence which the Claimant seeks to put before the court, it is submitted that reasonable provision for the Claimant should be a sum of approximately 50% of the net estate to enable her to acquire a modest dwelling house in an urban area from which she could readily (if need be by use of public transport) make herself available for employment and gain remunerated employment, so as to make adequate provision both for her future maintenance and for her retirement.”

Inheritance (Provision for Family and Dependants) Act 1975

“3 Matters to which the court is to have regard in exercising powers under s2

(1)

Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say

(a)

the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)

the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)

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

(d)

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

(e)

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

(f)

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

(g)

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

(2)

This subsection applies, without prejudice to the generality of paragraph (g) of subsection (I) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(a) or (b) of this Act.

The court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to –

(a)

the age of the applicant and the duration of the marriage or civil partnership;

(b)

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

and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.

In the case of an application by the civil partner of the deceased, the court shall also, unless at the date of the death a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the civil partnership, instead of being terminated by death, had been terminated by a dissolution order.

(2A) Without prejudice to the generality of paragraph (g) of subsection (I) above, where an application for an order under section 2 of this Act is made by virtue of section 1 (1)(ba) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to:

(a)

the age of the applicant and the length of the period during which the applicant lived as the husband or wife or civil partner of the deceased and in the same household as the deceased;

(b)

the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

(3)

Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(c) or I (l)(d) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the manner in which the applicant was being or in which he might expect to be educated or trained, and where the application is made by virtue of section l(1)(d) the court shall also have regard:

(a)

to whether the deceased had assumed any responsibility for the applicant’s maintenance and, if so, to the extent to which and the basis upon which the deceased assumed that responsibility and to the length of time for which the deceased discharged that responsibility;

(b)

to whether in assuming and discharging that responsibility the deceased did so knowing that the applicant was not his own child;

(c)

to the liability of any other person to maintain the applicant.

(4)

Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section l(l)(e) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility.

(5)

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.

(6)

In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities.”

There were three bundles and a supplementary bundle containing the disputed material. For reasons which have still not yet been established, the court bundles did not reach me. I had received the additional bundle which I had read. A spare set of the three main bundles was only produced at 10:30 and I had to take out time to read. I had also not received anything other than a supplementary skeleton argument on behalf of the charities until that point. As it turned out, it proved easier to master the relevant background facts than the volume of the bundles had originally suggested. I was able to devote the rest of the day to hearing counsel who took me in detail through the relevant passages, particularly in the judgment of Judge Million, and some of the 13 authorities which by then had been produced. But I had to reserve judgment.

I permitted the Claimant to supplement her grounds of appeal by the addition of ground 1, which I thought did require argument.

I also allowed amendment to add ground 3, in respect of the 1998 letter. Although it had been available at the date of the hearing its significance may not have been appreciated.

Proposed ground 2 of the supplemental grounds for appeal seeks to raise a matter which ought to have been raised at the court below when there was ample opportunity to do so, and cannot be raised at this late stage.

I admitted the anonymous letter and the statement of the charities' solicitors. I recognised that the anonymous letter is hearsay but it has produced by way of response statements from the Claimant and her husband setting out their case as to the very modest income earned by the Claimant’s husband, and which I admitted. The admission of this material was scarcely resisted. In the event no submissions at all were made on it by either side.

I take the supplemental grounds of appeal first.

Supplemental ground 1 - Mr Collins’ submissions in essence were that if the lack of expectancy from the deceased’s estate did not prejudice her case at the ‘gateway’ stage, it should not prejudice it at the evaluative stage either. Ms Reed submits to me that the judge was plainly entitled to take it into account when considering quantum.

Section 3 of the 1975 Act, as appears above, sets out a number of criteria to be taken into account by the court, not in any order of priority. Those criteria have to be assessed in respect of both what I have called the “gateway” stage, and at the evaluative stage. I take the view that the court is engaged in a different exercise at the two stages. At the first stage, this judge took the view that the lack of expectancy did not fail to make the lack of provision unreasonable. But the exercise in deciding on quantum was different. To take a simple example, the financial resources and financial needs which the applicant had or is likely to have in the foreseeable future may render the provision unreasonable: but the quantum will certainly be affected by the amount of the resource. The same is so in respect of all the other criteria set out in section 3. Therefore, in my view the judge was not wrong to take into account lack of expectancy: which seems to me to fall certainly under (g) “any other matter, including the conduct of the applicant or any other person … relevant” and also potentially under (d) “obligations and responsibilities” towards the Applicant.

Supplemental ground 3- The 1998 letter discloses that the deceased had received a very substantial lump sum after the death of her late husband, the Claimant’s father, which occurred when she was pregnant with the Claimant. In that letter she states that the sum was used to reduce or pay off the mortgage on the property which her late husband had owned and to which she succeeded as his widow. Mr Collins says that this puts a new light on the judge’s decision since the judge erroneously assumed that the deceased had brought up the Claimant from her own resources and in circumstances of some hardship. Mr Collins refers to Callaghan [1985] Fam1. The deceased had married the Claimant’s widowed mother. Her home had been provided by the Claimant’s grandfather. The Claimant’s mother predeceased his stepfather. Part of Booth J’s reasoning in providing for the Claimant out of the estate rested on the origin of the assets which “clearly derived from the Plaintiff’s mother … and from the property which was the gift to her of the Plaintiff’s paternal grandfather. It was in effect (her) inheritance following on the death of the first husband, the Plaintiff’s father.”

I agree with Ms Reed that the lump sum provided to the deceased, which may have been a payment or a death in service benefit, or a combination of both, does not fall into the same category. I reject Mr Collins’ argument that it derived from the Claimant’s father and therefore it is reasonable for her to be provided from this sum, which has become part of the estate. There is no evidence to suggest that this sum was anything other than a payment to the deceased as widow.

The essence of the original grounds of appeal is that, having found that reasonable provision had not been made, it could not have been reasonable for Judge Million to provide a lump sum which did not in reality provide any benefit for the Claimant. Mr Collins accepts that no evidence as to this was led in the court below, but he says that it is a matter of law that any capital over £16,000, unless it is used for the purchase of the home in which the Claimant is to be living, will reduce pound for pound the benefits to which the Claimant would otherwise be entitled.

In response, the Respondents submit that the District Judge had rejected the Claimant’s suggested figures in his judgment as being in excess of what would be reasonable to receive from the estate. In particular, the judge did not hold that an improvement was called for and was not given the tools with which to achieve it. Ms Reed has stressed to me that it was not for the judge to make enquiries or to suggest ways in which an award might be appropriately structured. It is further submitted that the £50,000 awarded would undoubtedly enable the Claimant to improve her circumstances in such ways as she might choose. It is pointed out, as indeed the Claimant accepts, that her budget and capital claim bore no relation to her actual circumstances. It is submitted that the Claimant’s claim is based upon the false premise that she is entitled to that which she would like her maintenance to be rather than an assessment under section 1(2)(b) of the 1975 Act as an assessment of what “in all the circumstances of this case it was reasonable for her to receive from the estate for her maintenance.” It is further submitted that the Judge had found that she had only just crossed the threshold and thus the award should be limited. The fact that the Claimant and her husband had managed for many years without any assistance from the deceased was crucial. It was submitted that the District Judge did not equate reasonable provision under the Act with the funds payable in respect of state benefits but took half of those tax credits as giving an indication of what the government accepts as being needed to give the Claimant a reasonable but basic standard of living; and on the facts in this case this was reasonable provision. The point is inevitably made that the size of the estate in this case was not sufficient to permit the Claimant to be both housed and provided for by way of capital: therefore any award cannot take her out of the benefits regime.

On behalf of the Claimant it is submitted that (i) there will be a real benefit to the Claimant if she can be housed because this will be capital which could be realised to provide her with a pension or other provision for her old age, and (ii) the judge should have looked at the long term provision for her future including pension when making his award.

The Claimant relies on Myers 2005 WTLR 851. The Claimant had suffered from mental fragility, ill health and emotional and practical problems and lived in straightened circumstances. The estate was worth in excess of £8 million. Mr Justice Munby, as he then was, held that the deceased had obligations and responsibilities towards the Claimant that were not be narrowly construed but to be taken into account in a broad sense. A balancing exercise is required for the many factors to which section 3 of the Act requires to have regard and the court should give weight to those factors as may in the individual case be appropriate. The factors tipping the balance in the Claimant’s favour were that she was living in severely straightened circumstances; although her situation was to a significant extent a result of her awkward personality; she had not had behaved as badly to the deceased as he seemed to believe; and he had very substantial wealth. There was more than enough in the estate to meet the needs of all parties. Thus in those circumstances she was provided with a flat and living expenses to be settled upon her. The Judge was at pains to make sure that she was not provided with a windfall.

Watson [1999] 1FLR 878 was a case where the Claimant had lived with the deceased, cooked and cleaned for him and kept house for him and contributed towards half of the costs of services in the home for 11 years. The provision made included re-housing in addition to a lump sum or annuity provision: her increasing physical frailty was taken into account. Mr Justice Neuberger, as he then was, said at 890b-d

“just because the person manages to live within his or her income does not mean that income fulfils all his or her needs or “requirements” let alone “reasonable requirements.”

Furthermore, the court must also have regard to the future. But in my view Mr Justice Neuberger made those comments in the context of the facts where expectation, obligation and responsibility were plainly a marked feature of the case. I accept that also in Watson Mr Justice Neuberger adopted a “broad brush” approach to the evaluation of the claim: just as Judge Million did here. Although it is submitted on behalf of the Claimant that Mr Justice Neuberger had no more than and perhaps less than the information that Judge Million had in this case, the assets in Watson were sufficient to provide for the whole of the Claimant’s needs and the judge did not have to carry out a detailed assessment of the effect of the award on state benefits.

Dennisdeceased [1981] 2 All ER 140 held that provision for maintenance can be by way a lump sum, for example to buy a house for which the applicant cab be housed. That approach has been adopted and followed in all subsequent decision where relevant.

Debenham [1996] 1 FLR 404 held that where the needs of a couple are combined and provision is to be made for only one of them, it is appropriate for a provision to be made for about 70% of the total.

Finally, I am reminded, although I need no reminding, that an appeal court can only interfere with a judge’s exercise of discretion (or perhaps evaluation) if the decision is wrong as being outside the range of reasonable disagreement, if the court erred in law; or if there was a serious procedural or other irregularity that renders the decision unjust. Furthermore, the court should assume that the first instance judge knew what he or she was doing having had the advantage of seeing and hearing the witnesses: and the court should not adopt a “narrow textual analysis” in determining whether the Judge has misdirected him or herself (see Piglowska v. Piglowski [1999] 3 All ER 632).

Ms Reed also referred me to Cunliffe v Fielden [2006] CH 361 for the proposition that if I am to allow this appeal and substitute my own evaluation I must do so on the basis of the figures as in the 2007 judgment. I am not persuaded that Cunliffe v Fielden is authority for that proposition: where the Court of Appeal took the figures as at the first instance decision because, it seems to me, they were still current. If, for instance, the estate had decreased very markedly in value in the 6 years since the first instance decision, it seems to me inevitable that the Respondents would wish to rely on that fact and such leave to rely on fresh evidence: and indeed in the facts of this case the Claimant’s asserted needs in this case are less now than they were at the original trial. In Watson Mr Justice Neuberger took the view that the cost of appropriate alternative accommodation had not been established and he adjourned the case for that information to be produced. I am in rather a different position on an appeal but I am very conscious of the costs which are being run up in this case. No attempt has been made to put in fresh evidence as to the costs of housing. I am far from certain that I would have permitted a further adjournment if I was satisfied that the Judge had erred. I accept entirely, however, Ms Reed’s submission that the first step is to decide whether the appeal against the award of Judge Million should be allowed. In any event Mr Collins has now limited his client’s claim.

As a result of the anonymous letter Mr Aspden, the Respondents’ solicitor, instructed an inquiry agent. He went to a spiritualist meeting and has reported back that the Claimant’s husband was offering various spiritualist services at a cost of £35 and his health did not seem to be as impaired as medical reports produced at the trial had suggested. The Claimant’s husband has responded that he has declared all his income for tax purposes, that he makes no profit on his consultations as part of his membership of a spiritualist church, and that this activity started post trial in any event. Ms Reed concedes that this aspect of the case makes little if any difference to the judge’s evaluation of quantum and, as I have said, did not touch upon the evidence in her argument. I discount it.

The judge found that it was not appropriate to meet the Claimant’s housing need in all the circumstances. Although the Respondent charities have no claim, moral or otherwise, on the deceased as the judge recorded, nonetheless he had to pay regard to the fact that this was the way that the deceased had chosen to bequeath her assets. The Judge’s award was intended to provide the Claimant with a windfall for her to spend as she liked in improving her circumstances. The Judge did not specifically take into account that only the first £16,000 of this sum would be of direct benefit to her, unless of course she expended the total immediately. I do not know and have not been told what effect on her benefits there will be if she does indeed expend these sums: and whether they will be treated as notionally hers. The reality may be that she will need to expend the first £34,000 on living expenses before she can reclaim benefits. I bear in mind that the judge was not given the material needed to make this assessment. I have not been given it now.

If I took the view that the judge’s approach was manifestly wrong because he did not provide a sufficient lump sum to re-house the Claimant, for the reasons set out in the Notice of Appeal, then of course I would allow the appeal. But the court at first instance is conducting a balancing exercise between the various factors. I cannot say that the judge was manifestly wrong, or even wrong, in taking the view that notwithstanding that the Claimant and her husband and family lived in straightened circumstances, the fact they had done so for so many years did not justify an award which improved their circumstances. The argument on behalf of the Claimant is in effect that because there will be no benefit to the Claimant unless her housing need is met, the award must achieve that result. That can not be the right approach. Otherwise, the judge’s determination that the lack of expectation tempered the award would be rendered meaningless.

Therefore, although I see entirely the difficulty raised on this appeal, I do not think that the judge, doing the best that he could with the material with which he was presented, can be said to be wrong, and I decline to allow the appeal.