David Marcus Isaacs v Michael Anthony Green & Ors

Sybil Rachael Issacs (“the Deceased”) died on 22 April 2013. She left a will dated 20 November 2006 which left her residuary estate to her two adult daughters Ruth Simone Isaacs (“Ruth”) and Susan Amelia Ellis-Cohn (“Susan”). Her will made no provision for her adult son, David Marcus Isaacs(“David”). David has therefore brought this claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) seeking reasonable financial provision from his late mother’s estate.

The First Defendant to this claim is Mr Michael Anthony Green (“Mr Green”), a solicitor in the firm of Howes Percival LLP. He is the independent administrator of the Deceased’s estate having been appointed as such by an order of Master Pester made on 21 March 2021. Ruth is the Second Defendant to the claim and Susan is the Third Defendant.

Although David was initially represented by solicitors, by the time of the trial before me he was acting in person. Mr Green, as the administrator of the Deceased’s estate did not play any active role in the trial. He attended on the first day to give evidence, and to be cross-examined about the estate. However, he was not represented and, with my permission, did not participate any further in the trial. Ruth, who supports David’s claim, asked questions of a number of witnesses and made short submissions. Susan is the only party who actively opposes David’s claim. She lives in California in the United States of America and, as I explain in greater detail below, she suffers from a number of serious and complex health conditions. She gave evidence and was cross-examined by video-link on the first day of the trial, but (with my permission) did not attend for the remainder of the trial. She was however represented throughout the trial by her counsel, Mr James Poole.

I am grateful to all parties for their submissions and recognise that David and Ruth as litigants in person are not familiar with court processes and have at times found participation in the trial not straightforward. I should also record my gratitude to Mr Poole for his submissions on the law which, mindful of his responsibilities as the only member of the Bar instructed in this matter, provided a clear and helpful explanation of the principles applicable to claims under the Act.

Section 1(1)(c) of the Act entitles a child of a person who has died domiciled in England and Wales to:

“apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.”

It is not in dispute that the Deceased died domiciled in England and Wales and that David is a child of the Deceased. He is therefore eligible to bring a claim under the Act.

The meaning of the phrase “reasonable financial provision” is explained by section 1(2) of the Act. In the case of a child of the deceased, such as David, it means:

“such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

Important guidance on the term “maintenance” was provided by the Supreme Court in Ilott v The Blue Cross & Others [2017] UKSC 17; [2018] AC 545. At paragraphs [14] and [15] of his judgment (with which all the other members of the court agreed) Lord Hughes JSC stated as follows:

“14.

The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living…

15.

The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years… If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.”

In the same passage Lord Hughes quoted with approval what had been said by Browne-Wilkinson J in In re Dennis, decd [1981] 2 All ER 140 , 145–146:

“The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry, decd … [1980] Ch 461 . In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in In re Christie, decd … [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. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.”

Section 2(1) of the Act provides as follows:

“Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders…”

The section then proceeds to set out a menu of potential orders available to the court in such circumstances, which include an order for the payment of a lump sum out of the estate (section 2(1)(b)) and an order for the transfer to the applicant of property comprised in the estate (section 2(1)(c)). Section 2(4) provides a wide power enabling the court to include consequential and supplemental provisions within its order:

“An order under this section may contain such consequential and supplemental provisions as the court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between one beneficiary of the estate of the deceased and another and may, in particular, but without prejudice to the generality of this subsection—

(a)

order any person who holds any property which forms part of the net estate of the deceased to make such payment or transfer such property as may be specified in the order;

(b)

vary the disposition of the deceased’s estate effected by the will or the law relating to intestacy, or by both the will and the law relating to intestacy, in such manner as the court thinks fair and reasonable having regard to the provisions of the order and all the circumstances of the case;

(c)

confer on the trustees of any property which is the subject of an order under this section such powers as appear to the court to be necessary or expedient.”

Section 3(5) of the Act requires the court to take into account the facts as they are known at the date of the hearing.

As the Supreme Court indicated in Ilott v The Blue Cross (supra), claims under the Act are often considered by reference to two questions:

In determining these questions (whether consecutively or together) I am required to have regard to the wide list of factors set out in section 3(1) of the Act. These are as follows:

“(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.”

For Susan, Mr Poole drew my attention to a number of other observations of the Supreme Court in Ilott v The Blue Cross (supra), namely:

I also asked Mr Poole for assistance on the approach that the court should take when assessing a claimant’s financial needs and resources in respect of the claimant’s liability for his legal costs incurred within these proceedings in the light of the recent decision of the Supreme Court in the case of Hirachand v Hirachand [2024] UKSC 43; [2025] AC 559. He referred me to the decision of Mr James Pickering KC sitting as a Deputy High Court Judge in the Chancery Division in Jassal v Shah [2024] EWHC 2214 (Ch), a decision which held that such costs were governed by the Civil Procedure Rules 1998, that they fell to be dealt with under that regime, and could not be included in any substantive award under the Act. This decision was approved by the Supreme Court in Hirachand (at para [60]). In the light of this decision I cannot take into account, when considering David’s financial needs and resources, his potential liability to his solicitors for the costs of these proceedings.

I explored with Mr Poole whether this principle also applied to Susan’s liability for her costs of these proceedings (which have been paid through a loan arrangement between Susan and her US attorney, Mr Giancarlo Irribarren). Susan’s position is not on all fours with that of David. She is not asking for additional financial provision from the estate, and so there would be no question of me making an order under the Act in order to make provision for her costs. Nonetheless, I consider that it would be wholly wrong for legal costs incurred within the proceedings to be excluded from consideration when assessing the financial needs and resources of an applicant under section 3(1)(a) of the Act, but for equivalent costs to taken into account when assessing the financial needs and resources of a beneficiary of the estate under section 3(1)(c) of the Act. Mr Poole, in my view quite correctly, did not seek to argue otherwise and I have therefore considered the financial needs and resources of all parties without reference to their liabilities for the costs of these proceedings.

I turn now to set out the factual background to these proceedings in greater detail. In about 1956 the Deceased and her husband, Lawrence Isaacs (“Mr Isaacs”) purchased a four bedroomed property 19, Heathfield Road, Croydon (“the Property”) in order to bring up their family of three children. Their two eldest children, David and Susan are twins, having been born in 1951 (and are now aged 74); Ruth is younger, having been born in 1953 (and is now aged 72).

Susan moved out of the family home in around 1975 and subsequently married, moved to the United States of America and had three children, the eldest of whom, David Ellis (“Mr Ellis”) has given evidence in these proceedings. Susan’s first husband died in a car accident and in 2007 Susan married again to Norman Cohn (“Mr Cohn”). Both Susan and Mr Cohn have a number of health issues and now live in separate residential facilities in the USA.

David moved out of the Property in about 1990. In 2001 he married and had a child. That marriage broke down and was dissolved in 2008. In 2011, following his father’s death David returned to the Property and has lived there ever since.

Mr and Mrs Isaacs had made mirror wills in 2002 leaving their estates to each other, or to their three children jointly if their spouse predeceased them. However, in 2006 they changed their wills to exclude David from benefit. Thus, by her will dated 20 November 2006, the Deceased appointed her husband and the partners in a firm of solicitors to be her executors. She left her entire estate to her husband but, if he did not survive her, then she left it to Ruth and to Susan jointly. The reason for this change is not clear. Susan’s case is that David had always had a very poor relationship with their mother, although this does not explain why David had been included as an equal beneficiary with his sisters in the 2002 will. David’s evidence was that at the time in question, his marriage was breaking down and his mother excluded him as a beneficiary to prevent his wife from making a claim on any inheritance. In his closing submissions he indicated that his mother had wanted for him to get divorced for a while before he had done so and her frustration with his failure to take steps to divorce his wife might have played a part in her decision to exclude him from her will.

Although David’s divorce was finalised in 2008, the Deceased took no steps to reinstate David as a beneficiary under her will at any stage until her death. Although there was no formal diagnosis of dementia in relation to the Deceased, it was common ground between David and Susan that, certainly by 2011, the Deceased’s capacity was significantly impaired.

Mr Isaacs predeceased his wife, dying on 23 February 2010. David moved back into the Property the following year after his tenancy of the council flat he had previously occupied with his wife came to an end. David accepted that the decision that he should move back into the Property was taken primarily by Ruth and that although the Deceased knew that he was there, she did not have capacity to make decisions in this regard. By this stage the Deceased was unwell and both David and Ruth provided her with care. The Deceased died on 22 April 2013.

On her death the Deceased’s estate consisted of the following assets:

Following the death of the Deceased, no immediate action appears to have been taken to administer her estate, save that the firm of solicitors who had been appointed as executors renounced their position. However, I have seen correspondence from 2013 onwards in which Susan sought to reach an agreement with David to enable the estate to be administered. At the time Susan was proposing that she and Ruth should each give up one quarter of their respective one half shares in the estate to David, although she sought to impose terms which would have seen the funds released to David as a monthly income. These proposals did not bear fruit.

Thereafter, very little happened until 2020. David and Ruth continued to live in the Property. Although they met the immediate outgoings for their household, little maintenance appears to have taken place. Susan derived no benefit from the estate but equally took no steps to assert her position as a beneficiary.

Finally, in June 2020, Susan issued proceedings against Ruth for the appointment of a personal representative in the Deceased’s estate. By an order made by Master Pester on 26 March 2021, Mr Green was appointed under section 116 Senior Courts Act 1981 to act as the Deceased’s personal representative. Letters of Administration in the Deceased’s estate were issued to Mr Green on 16 February 2022.

David issued his claim under the Act on 19 August 2022. He was initially represented by solicitors in these proceedings. However, since October 2023 he has been acting as a litigant in person (although he was represented by counsel at a hearing in June 2024). Ruth has been a litigant in person throughout.

These proceedings have proceeded very slowly. An unsuccessful FDR took place on 15 July 2024 and the matter was allocated to me for trial.

Whilst David’s claim has been ongoing, Mr Green has brought two sets of proceedings on behalf of the Deceased’s estate:

David’s first witness statement of 21 July 2022 identified that he was seeking a lump sum of £265,000 as constituting reasonable financial provision from the Deceased’s estate. This was to be made up of an accommodation fund of £225,000, a further £20,000 for furnishings and white goods and £20,000 as a contribution towards future costs of care. In his most recent witness statement of 26 June 2025 he has indicated that he is now seeking an order for one third of the Deceased’s estate. Ruth has supported David’s claim. Mr Green, as independent personal representative, has adopted a neutral attitude to David’s claim. Susan is the only active defendant to the claim, and her position as set out in Mr Poole’s skeleton argument is that the claim should be dismissed.

Whilst these proceedings have been on foot, there has been open correspondence between the parties and their legal advisers with a view to settling the case. In essence the parties have been exploring a solution whereby David and Ruth would raise money on the Property through equity release to enable Susan to receive her share of the estate in cash. Unfortunately, those proposals have foundered on various details and the parties have been unable to resolve this dispute.

At a pre-trial review in May of this year I gave all of the parties permission to file updating evidence of their respective positions (and in the case of Ruth, permission to file a statement as she had not previously done so). This evidence has been received and Mr Green has filed an updating statement setting out the current value of the Deceased’s estate. At trial oral evidence was given by all four parties and by Mr Ellis; Susan and Mr Ellis appearing by video-link from the USA.

The estate itself is not substantial. Although the Property has risen in value since the Deceased’s death the estate has been (and continues to be) diminished by Mr Green’s costs of administration and his costs in this litigation and in the possession proceedings. As matters stand, the value of the net estate (as per interim estate accounts to 27 May 2025) is £627,052 of which £600,000 represents the value attributed to the Property. That figure includes provision for a potential CGT charge on the sale of the Property (which will be in the region of £42,000). In his oral evidence Mr Green confirmed that his unbilled costs and disbursements (not included in the above figure) stood at £22,896 (exclusive of VAT) as at the eve of the trial. Thus, the total assets available for distribution in the estate are unlikely to exceed £600,000. Mr Green has also paid from the estate Susan’s legal costs of the proceedings that led to his appointment. These costs had been ordered to be borne as to 75% by Ruth and 25% by Susan, so that the accounts show interim distributions to Ruth of £15,450.75 and to Susan of £3,839,25 as having been made.

I asked Mr Green for an estimate of the costs of the possession proceedings. I understand these to be in the region of £25,000.

I now turn to consider the financial needs and resources of each of the parties.

David

As I have already mentioned, David is 74 years old. He has formerly worked, most recently as a salesman and porter, but ceased employment in 2020 at the time of the Covid pandemic. His income consists of the State Pension and some additional pension credit and currently stands at approximately £950 per month. I understand that he currently has a small overdraft of around £300 or so and no savings of any significance.

His first witness statement set out a list of outgoings on household and other expenses and suggested that he had an annual income deficit of c.£950. David’s third witness statement of 26^th June 2025 states that there had not been any significant changes to his finances since his first statement. Exhibited to both statements were various bank statements. These show that David’s outgoings do not correspond with the details provided in his first witness statement, and that he appears to be spending a significant amount of money on collectible coins and stamps each month together with a number of charitable donations.

Under cross examination David’s finances became clearer. I was told that the expenditure figures for household bills set out in his first witness statement reflected the total household expenditure, rather than his one half share. In practice the majority (but not all) of the main bills are paid by Ruth and David reimburses her for his one half share. The precise extent of these expenses is not wholly clear. Following cross-examination it appeared (largely from information included within Ruth’s witness statement) that their joint monthly spend on household expenses was perhaps £700 or so. However, in the course of preparing this judgment I have noted that the figures provided by Ruth do not include any provision for Council Tax on the Property (which I understand from David’s first witness statement may be around £120pm) and by adopting summer figures, allows only for a total monthly fuel spend of £50. It seems to me that £850 may be a more realistic figure for their current monthly outgoings.

On this basis David’s share is approximately £425 per month. His income, as shown on the bank statements is c.£950pm. He has no savings and the balance of David’s income is spent on other personal items, including presents for his son and on collectible coins and stamps. I recognise that some of this expenditure will represent personal items of immediate use such as clothes, dentist etc. However, it seems that David may currently be spending around £450 per month on coins, stamps or presents for other individuals.

David’s first witness statement was prepared by his then solicitors, and I do not consider that the confusion over the details of household expenses within it was a deliberate attempt to deceive. In much of his oral evidence I consider that he was truthful and trying to assist the court. However, David was initially reluctant to provide details of his collecting habit and in his responses to Mr Poole’s questions he became combative and sought to downplay his spending in this area. I found that he was more forthcoming in response to some questions that I asked him on this issue, although I have still treated his evidence on this point with some caution.

David referred to his coin collection in his first witness statement although he described them as “a small collection of commemorative coins which are mostly silver or gold plated but no solid gold coins”. The statement did not ascribe a value to this collection. From his responses to questions that I asked, I understand that he may own around 50 sets or series of coins. Although he told me that he had perhaps spent £70-£100 per set, when I asked him the value of the collection he suggested that it was £40,000 and referred to it as an inheritance for his son.

I consider this valuation improbable, and David himself described it as a guess. Ruth described David purchasing “silly things” and doubted that many of the items bought by David would have an innate value and I consider that this is more probable. Nonetheless it is clear that David has spent, and continues to spend, a significant portion of his income after his contribution to household expenses on these collectible items and other presents (perhaps around £450 per month).

That said, it is clear that David spends little money on anything else. He and Ruth clearly live extremely modestly and do so within their combined means. He does not smoke or drink and he and Ruth do not go out for dinner or to other entertainment. Ruth has given up their car. Nor is David necessarily paying his full share of the overall household expenses. Ruth is making repayments of £228 per month in respect of a loan that was taken out to remove foam insulation from the loft in the property. David is not contributing to those repayments.

David has also disclosed that under a Conditional Fee Agreement with his former solicitors he will have a liability for legal costs in the sum of £52,365.28 (inclusive of VAT) in the event that he succeeds in obtaining provision from the Deceased’s estate. I understand that these are the base costs and that no success fee is charged. For the reasons that I have already given I have not taken these costs into account in my assessment of David’s financial needs and resources.

David does not own any property. He is currently living in the Property, but he has no entitlement to do so. Mr Green as the Deceased’s personal representative is seeking possession of the Property and is pursuing a claim against David and Ruth for mesne profits in respect of their occupation together with costs. He thus stands to be homeless if those proceedings succeed.

Depending upon the outcome of the possession proceedings, both Ruth and David may also have costs liabilities to be met in respect of those proceedings. Indeed he and Ruth are jointly liable for an interim costs order made against them within the possession proceedings of £1,000. Although the Hirachand principle does not apply to those costs (as they have not been incurred within these proceedings) I have not taken them into account as their liability and amount is currently uncertain. I also note that from a practical perspective, even if costs are awarded against them, their effective liability will be no more than 50% of the bill (as Ruth will be entitled to 50% of any costs reimbursed to the estate).

David also has a number of health issues which include osteoporosis, arthritis, kidney stones and a thyroid condition. The condition that currently has the greatest impact on David’s quality of life is a valgus deformity of both ankles which affects his mobility. He has had surgery on these in the past, but he has suffered a collapse of both ankles leading to cellulitis infections and swellings. He has an unhealed ulcer on the site of a former operation and that he is on a lengthy waiting list for plastic surgery to remedy this. He is on strong painkillers and his leg currently requires bandaging twice a week.

Mr Poole makes the point that David may be entitled to additional state benefits that he is not currently claiming including attendance allowance and housing benefit (in the event that he needs to rehouse himself). I do not know whether David would qualify for attendance allowance and have not taken it into consideration. I recognise that were David to be made homeless the local authority would have an obligation to house him, although such accommodation might prove far from ideal.

Ruth

Ruth did not initially file any evidence. However, following indications that I gave at the pre-trial review of the importance of all parties providing evidence of their financial needs and resources, she has now filed a witness statement providing some details of her position.

In addition to her interest in the Deceased’s estate Ruth has savings and cash of approximately £13,500 and loans and credit card debts of around £6,000. Her income is c.£910 per month. She provides a list of outgoings totalling £777 per month which includes a figure of £200 as a contribution to her savings and a further £228 as loan repayments. As set out above her figures do not include any provision for Council Tax and I propose to adopt a figure of £425 for her contribution to the general household expenses equivalent to the figure I have used for David. Ruth’s evidence was that since September 2024 she has spent over £10,000 on works to the Property with a view to making an equity release application.

Like David, she is a defendant to the possession claim and will be homeless if possession is ordered against her. She will need to use her inheritance from her mother to rehouse herself. Exhibited to Susan’s most recent witness statement are a number of sets of property particulars for alternative two bed properties in the Croydon area for between £210,000 and £300,000. Mr Poole suggested to Ruth that this is what it would cost for her to rehouse herself in accommodation suitable for both her and David. Ruth did not accept this. She did not consider that suitable properties would be available for that price and made the fair point that the properties identified were leasehold properties which would carry service charge or ground rent obligations. However, and tellingly, when I asked Ruth what sum she considered she needed for her and David to rehouse themselves, she did not provide me with a satisfactory answer. I was left with the impression that for Ruth the only real acceptable outcome would be for her and David to remain living in the Property.

For his part David suggested £400,000 to £500,000 would be required to find a “good” property elsewhere. I consider that is too high, but bearing in mind the additional liabilities that ownership of a leasehold property can bring, in my view £350,000 would be a more realistic figure for a replacement two bedroomed property for Ruth and David.

An alternative would be for them to rent. Ruth had provided a figure from the Office of National Statistics suggesting that the average rent of a two bedroomed flat in Croydon is £1,500. On the other hand I note that Mr Green is claiming £3,000 per month in mesne profits in the possession claim. Again, I consider that a realistic rent would be somewhere between these two poles, say £2,000 or £24,000 per year. On this basis Ruth’s share of the estate may only suffice to pay rent for 13 years or so.

Susan

Evidence on behalf of Susan was originally filed by Mr Ellis. This statement contained a significant amount of hearsay and argument and a redacted version (removing much of this contentious material) has been filed. Susan herself has filed three statements, the first essentially confirming Mr Ellis’ statement and two subsequent statements setting out her position in more detail. She gave oral evidence via video-link.

Susan suffers from a complex set of serious medical conditions. She is bed-ridden and unable to walk. She has a colostomy, a nephrostomy (a tube to drain her kidneys) and a hole in her neck following a tracheostomy that requires constant attention. She also has a hip infection which is supressed by daily antibiotics. Her medical notes make reference to recurrent C. diff. colitis, stage 4 chronic kidney failure, breast pain and to her suffering from a major depressive disorder. She is on a large number of different medications. Mr Ellis’s evidence was that she has been close to death on a number of occasions.

Susan is a long-term resident at a residential placement in the USA, described by Mr Ellis as a post-acute field nursing facility. Her placement there is funded through the public Medicare scheme, and she shares her room there with another resident. In addition, she receives $1,416 in state benefits per month (approx.£1,050) which she uses to reimburse expenses met on her behalf by relatives and to pay for storage of her personal belongings. As of May 2025 she had savings of about $18,000 (£13,350).

Her evidence is that she is deeply unhappy and depressed as a result of her placement and surroundings. Indeed, in her evidence she calls the placement “unbearable”. She describes the food in her placement as uneatable and is having food delivered at a cost of around $1,000 per month. Her evidence on who pays for this food was confusing. In her second witness statement and oral evidence she describes herself as reimbursing these costs, but in her third witness statement she stated that these costs were being met from funds belonging to her second husband Mr Cohn whose affairs are being managed by his son (and Susan’s step-son) Matt Cohn.

Susan’s current legal fees are being met in the first instance by her US attorney, Giancarlo Irribarren, and she has agreed to repay these once she receives her inheritance from her mother’s estate. I do not know the level of those costs, although I have no doubt that they are significant. For the reasons already discussed I have not taken them into account in my determination of her financial needs and resources.

During their marriage Susan and Mr Cohn kept their finances separate, although they lived in a property that belonged to Mr Cohn alone which was recently sold for a sum in the region of $1.8M. Mr Cohn now suffers from dementia and his assets (including the proceeds of sale of his property) are now held within a trust structure. During Mr Cohn’s lifetime the income and capital of the trust are to be applied for his benefit. After his death any part of the trust capital not yet distributed is to be held on a special needs trust for Susan’s benefit. The trust provides for payments from income and capital to be made for Susan’s “special needs” which are defined as:

“the requisites for maintaining [Susan’s] health, support, maintenance and education, when, in the discretion of the trustee, such requisites are not being provided by any public agency, office of department of the State of California, or of any other state, or of the United States.”

The expression includes, but is not limited to:

“medical and dental expenses; clothing and equipment; programs of training, recreation, education and training; and essential dietary needs…”

The trust also provides that it is the settlor’s intention that:

“no part of the interest earned by or the corpus of trust created herein shall be used to supplant or replace public assistance benefits of any county state, federal or governmental agency that has a legal responsibility to serve persons with disabilities.”

Thus, although Susan is a discretionary object of the trust after Mr Cohn’s death, she has no entitlement to any assistance from the trust. The trust is effectively designed to preserve any entitlement that she may have to funding from public sources, and to supplement rather than replace such benefits.

I found the evidence in relation to this trust to be somewhat opaque. The trust describes itself as having been amended and restated by Mr Cohn in February 2024, although I understand that he has been suffering from dementia for some while. Although both Susan and Mr Ellis were clear that no significant financial support for Susan was likely to be forthcoming from this trust and referenced discussions with Matt Cohn (who along with Mr Cohn is a trustee of the trust) I did not gain any real understanding as to why Mr Cohn was making no financial provision whatsoever for his wife, notwithstanding the clear needs that she currently has.

I was not greatly impressed by Susan’s oral evidence. I fully take into account the great difficulties that she faced in giving evidence, doing so via video-link from her bed in her placement, at what would have been an early hour in the morning in California. I also recognise that the reality of being cross-examined in person by her siblings meant that at times her evidence took on the air of a family argument.

Nonetheless, I was struck by Susan’s limited recall of a large number of matters and on a number of occasions she was clearly turning to her US lawyer (who was in the room to assist Susan with the various bundles) for assistance with answers to the questions that were asked of her, something that I had to repeatedly ask her not to do. She was also unable to explain why her third witness statement which was signed less than a month ago had (wrongly) stated that her food delivery costs were being met by Mr Cohn.

On some matters (such as questions about correspondence that she had had with David in 2014 and 2015 about their mother’s estate), I was left with the impression that her lack of recollection was a matter of convenience. In respect of other issues, even where she had some degree of recollection her evidence lacked any detail. For example, although she was clear in her oral evidence that their mother did not like David, she did not provide any credible explanation as to why this dislike had arisen; nor could she explain why (given this apparent dislike) Mrs Isaacs had treated David equally with his sisters in her 2002 will.

However, the issue that struck me most about the evidence of both Susan and Mr Ellis was the lack of any evidence or proposals as to how Susan’s inheritance from her mother could be applied to make practical improvements to her situation. Susan’s evidence is that she finds her current placement to be unbearable, and the point is made that it is over an hour’s drive for her son to visit her there. However, Mr Ellis in his evidence indicated that it would be possible to move Susan to an equivalent facility closer to where he lives. My understanding is that Susan’s care and medical costs are currently met through the government Medicare scheme, and this would continue to be the case if she moved to an equivalent facility closer to Mr Ellis.

However, I understand Susan’s real complaint to be that she does not want to be in a publicly funded placement at all and that her unhappiness in current placement would be likely to be replicated if she were moved to a similar facility elsewhere. In her second witness statement Susan suggested that her inheritance from her mother could pay for improvements to her son’s property and the costs of a carer. In his oral evidence Mr Ellis seemed more taken with the idea of purchasing a suitable property for his mother where she could receive care than with altering his own home to accommodate her. However, it was clear from their cross-examination that these were essentially general aspirations rather than costed proposals. Neither Susan nor Mr Ellis appears to have explored either the options that would actually be available to her or the costs of those options in any detail. The only evidence that I have in this regard is a “LifeCare Plan” report dated 2 July 2024 which was exhibited to Susan’s second statement. That report suggests that in order to comply with State nursing regulations, Susan, if provided with care in a home environment, would need to be cared for by a registered nurse, not just a home health aide. The annual cost of a package to provide this care is put at $808,554pa (approx. £650,000). As an alternative, the report suggests the cost of Susan receiving care in a sub-acute facility would be $473,040pa (approx. £350,000).

Given that Susan’s inheritance from her mother will, even if I were to dismiss this claim entirely, be unlikely to exceed £300,000 it seems clear to me that the suggestion that Susan could use her inheritance to fund a move to a home placement or another facility is hopelessly unrealistic. Mr Poole makes the point that any inheritance could be used to enable Susan to enter a sub-acute care facility where she could receive appropriate care, for a limited time to enable her to recuperate. On the figures that I have, £300,000 would enable her to live in such a facility for around 10 months. Mr Poole described every penny as being important to his client.

This case is far from straightforward. I am faced with three siblings, all of whom are in their seventies, and all of whom have clear financial needs. None are now capable of earning a living, and two of them, David and Susan, have significant healthcare needs. On the other side of the equation there is a finite and diminishing pot of money that is plainly insufficient to meet all of their needs in full.

Turning first to the terms of the Deceased’s will, I do not accept Susan’s evidence that the Deceased had always disliked David. Their relationship was sufficiently strong in 2002 for David to be included in her will and although by 2011, her condition appears to have deteriorated to the point that she was not herself able to make the decision that David should move back into the Property, she was aware that he had done so and appears to have been grateful for the assistance that he and Ruth provided to her in her final years. David told of his mother describing him as a “good boy” during this period and I felt this gave a genuine insight into their relationship during this period.

On the balance of probabilities, I consider that the Deceased’s decision to exclude David from her 2006 will was driven by her concerns about the state of his marriage. I cannot say whether this was because she did not approve of David’s delay in seeking a divorce from his wife or because of concern that any inheritance received by David would be at risk in financial remedy proceedings, but I do not consider that this really matters. In this regard I do not accept Mr Poole’s submission that David’s inheritance would not have been at risk on a divorce. Given David’s limited means, I consider that any funds that he inherited from his mother would have been liable to be taken into account to meet the financial needs of his wife and child in financial remedy proceedings whether or not they represented matrimonial property. It is harder to say precisely why the Deceased did not change her will again after David’s divorce had been finalised in 2008, and I am not in any position to determine when she would have lost testamentary capacity. Nonetheless, I am satisfied that certainly by 2011 the relationship between David and the Deceased was a friendly one, albeit one that must be seen in the light of the Deceased’s diminished capacity.

I am also satisfied that David is in genuine financial need and requires provision for his maintenance. Since 2011 he has been dependent upon the Deceased (and subsequently her estate) for his accommodation. I do not accept Mr Poole’s submission that David is not in financial need, because his needs (and in particular his requirement for accommodation) are being met (or will be met) by Ruth. I accept that it is highly probable that Ruth and David will continue to pool their financial resources for the foreseeable future, whether they continue to live at the Property or elsewhere. That said, they are siblings rather than a married couple and David has no legal claim on any asset belonging to Ruth. There may be circumstances in the future when, for whatever reason, it would no longer be possible or appropriate for Ruth to continue to use her own limited resources to accommodate both herself and David and I consider that David has demonstrated a need for financial provision in his own name to safeguard his right to accommodation. Further, I am not satisfied that Ruth’s share of the estate on its own would suffice to provide suitable accommodation for both her and David.

Whilst David has not demonstrated an immediate income shortfall, and is currently spending a significant part of an otherwise modest income on items that are not essential to his day-to-day welfare, I make the following observations:

This is not a case where the claimant is, to quote Lord Hughes in Ilott at [20] “well capable of earning a living” and having regard to David’s financial needs and resources, his state of health and my findings as to the circumstances surrounding his exclusion from the 2006 will, I consider that the will failed to make reasonable financial provision for him and that I should now make reasonable financial provision for him within this claim.

What form then should that provision take? Although Lord Hughes identified in Ilott (at [15]) that where housing is provided by way of maintenance, it is more likely to be provided by a life interest rather than a capital, I do not consider this to be an appropriate course of action here. The estate is small and for a life interest to provide meaningful support, it would have to extend over a significant part of the estate. The parties are siblings of a similar age and the grant of a life interest in favour of David could effectively shut Ruth and Susan out of a significant portion of capital for the rest of their lives. Furthermore, the family relationships here are such that a professional trustee would be required which would have a further cost that the estate could ill afford.

I fully recognise that in making provision for David, I will, of necessity be taking away funds that would otherwise be available to Ruth and Susan, and I must therefore consider the impact upon them of any provision that I make for David. So far as Ruth is concerned, although the immediate effect of my order will be to reduce the share of the estate that she receives, if she and David continue to live together, it will enhance the value of the joint assets available to them. From Susan’s perspective though, there is only downside. I have therefore considered carefully the impact upon Susan of making provision for David. The difficulty here is that I have very limited evidence as to how the receipt of any inheritance could be used to positively improve Susan’s life. Her care and medical needs are being met from public funds, and her limited additional costs are fully met from her income.

The real issue for Susan is that she does not want to be in either her current placement or an equivalent facility at all. However, that is not something that the resolution of this claim can achieve for her as it is clear from the evidence of care costs that a move to home care (either to a separate property purchased for this purpose or to Mr Ellis’s home) is simply unaffordable. The only alternative option potentially available to her would be to move to a sub-acute facility where she could receive private care for a limited period. I am told that this would enable her to recuperate, although I do not have any real evidence as to the difference between the care that she would receive in such a facility and that currently enjoyed, although I recognise that this may enable her to enjoy a private room and receive better food. The evidence submitted shows that the annual cost of such a facility would be around £350,000 or approximately £29,000 per month. Thus an inheritance of £300,000 would enable her to move to such a facility for around 10 months. For every £30,000 that her inheritance is reduced by David’s claim then her stay in such a facility will be shortened by one month.

It is not possible to balance in any meaningful way the benefit to Susan of a longer period in a private facility as against the benefit to David of making appropriate provision for his maintenance, and I accept that in reaching my conclusion in this case I have been forced to adopt a broad brush to achieve a just outcome given the views that I have reached regarding David’s claim and the needs of the other parties, and in particular, Susan.

Taking into account all of the evidence in this case, the submissions that I have received and the list of factors identified at section 3(1) of the Act, I have concluded that reasonable financial provision in this case would be for David to receive 25% of the Deceased’s residuary estate, with the balance being shared equally between Ruth and Susan. I have not provided for an equal split between the three siblings as I consider that a one quarter share would be sufficient to provide David with appropriate accommodation were he to live independently from Ruth (which is the maximum level of maintenance which I consider appropriate for him). This lower share also acts as an acknowledgement that David has already enjoyed a significant benefit from the estate as a result of his rent free occupation of the Property since 2013. However, I do not consider that either he or Ruth should now be required to account (by mesne profits or occupation rent) for the benefit that they have enjoyed from the occupation of the Property to date.

On the assumption that the distributable estate is worth approximately £600,000 my award will mean that David should receive around £150,000 and Ruth and Susan approximately £225,000 each. This would give Ruth and David a combined sum of approximately £375,000 to rehouse themselves, alternatively, if they sought to purchase the Property from the estate, they would need in the region of £225,000 to do so (although the final purchase price would be a matter of valuation and there would also be legal costs and Stamp Duty Land Tax to be taken into consideration). Equally, if David so wished, he would have a fund available to him to enable him to live independently from Ruth. On the evidence that I have seen £150,000 would be sufficient to enable him to purchase a one bedroomed flat.

On the subject of the Property, whilst I recognise Ruth and David’s sincere wish to remain there, I have considerable doubts as to the feasibility of this wish and their ability to raise the funds to purchase it from the estate within a reasonable period of time. They have already had a considerable period of rent-free accommodation from the estate and this cannot continue indefinitely. Nonetheless, I recognise that they should not be expected to move immediately; any arrangements that they make either to purchase the Property from the estate or to move elsewhere will take a little time, and the possession claim will not be dealt with before November in any event. Although I am prepared to give David and Ruth time to make arrangements to purchase the Property or to rehouse themselves, this will be for a fixed period and I would expect Susan to be compensated for their continued occupation of the Property during this period.

In order to deal with these matters, I propose making supplemental orders under section 2(4) of the Act to achieve the following:

I will hear from the parties on these points following the hand down of this judgment.

That is my decision.

Finally, before concluding this judgment I need to say something about Mr Green and the various allegations that have been made against him by David and Ruth. Mr Green was cross-examined by Ruth, and it was clear from her questioning, and indeed from her own evidence that she is extremely hostile to Mr Green and takes issue with his administration of the estate. In their submissions, both she and David have raised a number of points which, although not immediately relevant to the determination of David’s claim, have obviously exercised them greatly and which I will address.

I am concerned that David and Ruth’s focus on Mr Green may continue notwithstanding this judgment. Their future conduct in this regard is not something I am able to regulate. However, I am deeply troubled that the already limited resources that are available to members of this family could be depleted further by continued litigation. I would strongly urge all parties to consider the proportionality of any continued challenge to Mr Green’s actions and not to reduce further the funds remaining within the estate through additional dispute and litigation.

I determined that David and Ruth should have six months to complete the purchase of the Property or find an alternative place to live. Although my order is not intended to prejudice to Mr Green’s right to seek a possession order against them before then within the possession proceedings, I have directed that any possession order shall not be enforced before 25 January 2026.

I have ordered that until they either (a) purchase the Property, or (b) vacate it, David and Ruth should pay Susan £1,125 each month for their continued occupation of the Property. This figure is 37.5% of the £3,000 monthly mesne profits claimed by Mr Green within the possession proceedings. This sum is to be rolled up and paid to Susan by an adjustment of the funds payable to the various parties out of the estate in the course of administration.

As set out in the above judgment, in the light of the decision of the Supreme Court in Hirachand, I did not take the potential costs liabilities of the parties within these proceedings into account when determining the relief that I should order. The consequence of this (as James Pickering KC recognised in Jassal v Shah at [35(6)]) is that the costs order will impact the financial outcome designed by my substantive order. However, this reflects the policy of the CPR 1998. My decision on costs was that, in the absence of any relevant offers, they should follow the event (subject to a moderate discount for some conduct related issues) and Susan is required to pay three quarters of David’s costs of the claim, such costs to be subject to a detailed assessment on the standard basis if not agreed.