Property – Will – Financial provision – Respondent living in property with deceased for 20 years prior to death – Appellant 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 – Court upholding decision of recorder that respondent entitled to transfer of property on payment of specified sum – Appellant appealing – Whether court 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’s appeal against that order was dismissed by the High Court: see [2016] EWHC 1787 (Ch); [2016] PLSCS 213. The appellant appealed. The questions for the court were: (i) whether the Recorder was right to conclude that the deceased’s will did not make reasonable financial provision for the respondent’s maintenance; and (ii) whether the Recorder was entitled as a matter of law to make the order that he made under the 1975 Act.
Held: The appeal was dismissed.
(1) There were clear indications in Lord Hughes’s judgment in Ilott v Blue Cross [2017] UKSC 17 (delivered after Newey J’s decision in this case) to the effect that the broad concept of “maintenance” in section 1(2)(b) of the 1975 Act could extend to the provision of a house in which the applicant could live, albeit that it might most often be provided by way of a life interest. Moreover, the need for maintenance rather than for anything else, and judged not by subsistence levels but by the standard appropriate to the circumstances, was a necessary but not a sufficient condition for an order. The balancing of those financial needs against the needs of others mentioned in subsection 3(1)(b) and (c) and the other non-financial factors in section 3 was an exercise highly individual to each case and required a value judgment by the trial judge, with which an appellate court should only interfere if there had been an error of principle or law.
(2) The problem for the appellant in this case was that the Recorder found that the respondent was being maintained by the deceased in that she was providing the roof over his head. Taking into account the matters referred to in section 3 of the 1975 Act, the respondent needed that maintenance to continue, rather than requiring him to move house. The Recorder had balanced the interests of the beneficiary against the claims of the applicant and concluded that the respondent’s needs, not his wishes, outweighed the proper interests of the beneficiary. The fact that the respondent had no expectation, or understanding with the deceased, that he would be able to continue living in the property after her death did not affect the fact that he was being maintained up to her death, and that he needed that maintenance to continue. What was important was that, in the event, it was shown that the will of the deceased did not, taking into account all the relevant circumstances, make reasonable financial provision for the respondent’s maintenance after her death. That was a matter of the respondent’s objectively assessed needs. In the Recorder’s evaluation, the absence of a moral obligation was outweighed by what was required to preserve the status quo for a very old and infirm person, who had been kept in a suitable house by the deceased for the nearly 20 years. It was clear that the Recorder had undertaken the appropriate balancing exercise under the 1975 Act. On the evidence, he was fully entitled to reach the conclusion that he did: Ilott v Blue Cross [2017] UKSC 17 followed.
(3) It was common ground that an order could be made under section 2(1)(c) of the 1975 Act which required the transfer of a house to the applicant in return for some financial consideration. It was not a requirement of the 1975 Act that, in any particular method of reasonable financial provision for the applicant’s maintenance, consideration should move away from the estate. Here, the applicant’s needs were for some in specie property, and the precise financial value of that property was less important to the applicant than the property itself. Once it was established that the deceased was maintaining the respondent by providing for him to live with her in the property, it followed inexorably that an order could, in theory, be made for that “maintenance” to continue, all other requirements of the 1975 Act being satisfied. The order made, although unusual, was entirely permissible and appropriate under the 1975 Act and should not be ruled out on grounds of jurisdiction. The Recorder plainly thought that requiring the respondent to move out of the property, in the actual circumstances pertaining at the time of the hearing, should be avoided. He balanced the interests of the beneficiary and was entitled to reach that conclusion, applying the tests clearly expounded in Lord Hughes’s speech in Ilott.
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
