Property – Will – Financial provision – Respondent living in property with deceased for 20 years prior to death – Claimant deceased’s daughter inheriting property under will and applying for possession – Respondent seeking relief under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision – Recorder deciding respondent entitled to transfer of property on payment of specified sum – Appellant appealing – Whether recorder erring in law – Appeal dismissed
The deceased’s will provided for the appellant, her daughter, to inherit her mother’s estate which principally comprised the deceased’s home, a house called “Green Avon” in the village of Twyning Green in Gloucestershire. Since 1995, the property had also been the home of the respondent, aged 91, who lived with the deceased (eight years his junior). The will made no provision for the respondent to stay in the property.
The appellant, as the executrix of her mother’s estate, issued a claim against the respondent in the County Court seeking, among other things, possession of the property and damages for trespass or mesne profits. The respondent accepted that he was significantly better off than the deceased but issued an application for relief under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. A recorder concluded that the respondent should be given an option to have the property transferred to him for £385,000, in exchange for which the appellant was to transfer the property to him within 28 days.
The appellant appealed against that order contending that the recorder had: (i) failed to apply the law applicable to the respondent’s claim under the 1975 Act in accordance with either judicial guidance or the facts, and as a result reached wrong conclusions in respect of the merits of the claim; (ii) fallen into error in treating the respondent’s claim as a claim under section 1(1)(e) of the 1975 Act, finding merit in it on the basis of a finding that he was being maintained by the deceased without paying any or any sufficient heed to the evidence or even considering the necessary balancing exercise; and (iii) exceeded his powers by making an order which he had no power to make.
Held: The appeal was dismissed.
(1) In the case of an applicant other than a husband or wife, “reasonable financial provision” was defined by section 1(2)(b) to mean “such financial provision as it would be reasonable in all the circumstances of the caser for the applicant to receive for his maintenance”. Unlike the word “maintained” in section 1(1)(e) and 1(3), “maintenance” was nowhere defined in the 1975 Act, and the courts had not provided a precise or comprehensive explanation of the word. On balance, “maintenance” could exceptionally encompass an arrangement for full consideration. The word “maintenance” suggested the provision of assistance to enable a person to meet the requirements of his daily life. Someone of ample financial means would not normally need any such help. In principle, however, “maintenance” was not necessarily confined to support with a person’s “cost of … daily living”. It was capable of referring to other forms of assistance with the requirements of daily life. If, therefore, a person was in want of a particular thing to sustain a reasonable quality of life, the provision of it could possibly represent “maintenance” regardless of his financial means. A person could potentially, albeit only very rarely, be in need of financial provision for his maintenance without being in any way short of money: his money might not be able to secure him what he required. As a result, there appeared to be no absolute bar on the provision of something for full consideration representing financial provision for a person’s maintenance: In re Coventry, decd [1980] 1 Ch 461, Re Dennis (Deceased) [1981] 2 All ER 140 and Ilott v Mitson [2015] EWCA Civ 797, [2015] 2 FLR 1409 considered.
The decision that a judge had to make on a claim under the 1975 Act was a value judgment and such a decision was particularly difficult to disturb on appeal, unless the judge of first instance had clearly proceeded on some error of principle. In the present case, it had not been demonstrated that the recorder had made an error of principle or otherwise arrived at an impermissible conclusion on the question of whether the deceased’s will failed to make reasonable provision for the respondent’s maintenance. Although another judge might have taken a different view, it did not follow that the recorder’s decision could be impugned. He was justified in concluding that the will had failed to make reasonable provision for the respondent and, in particular, that this was a case where, exceptionally, there had been a failure to make reasonable financial provision for the maintenance of someone who was not short of money.
(2) The section 1(1)(e) point proceeded on the basis that the recorder had treated the respondent’s claim as made under section 1(1)(e) of the 1975 Act. However, it was clear in the context that the recorder did not treat the respondent as having applied under section 1(1)(e). He was making the point that, in his view, the fact that the will did not contain anything to allow the respondent to remain in the property meant that it had failed to make reasonable financial provision for his maintenance under section 1(2)(b).
(3) As the court had concluded that the recorder was entitled to decide that, the respondent’s financial means notwithstanding, the will failed to make reasonable provision for him, it must have been open to him to exercise his powers under section 2 of the 1975 Act to compel the appellant to transfer the property to the respondent. Furthermore, as the price that the respondent was to pay for the property was £45,000 more than the value attributed to it by a jointly-appointed expert, the recorder was entitled to exercise his discretion as he did and not compensate the appellant further by ordering the respondent to pay for his occupation of the property up to the point of transfer.
Bernard Weatherill QC (instructed by Tierney & Co, of Rotherham) appeared for the appellant; Roger Evans (instructed by Moore Brown & Dixon LLP, of Tewkesbury) appeared for the respondent.
Eileen O’Grady, barrister