Neutral Citation Number [2007] EWHC 2 (Ch)

Case No: HC04C01623 

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London WC2A 2LL

11 January 20O7

Before:

MR MICHAEL FURNESS OC
(Sitting as a Deputy Judge of the High Court)

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IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
IN THE ESTATE OF CUTHBERT PETER GARLAND DECD.

Between:

YVETTE HILARY GARLAND
Claimant

and

ARNOLD BRIAN MORRIS
BEVERLY JOY MOORE
Defendants
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Araba Taylor (instructed by Heald Nickinson) for the Claimant
Charles Holbech (instructed by Edwards Abrams & Doherty) for the Second Defendant
The First Defendant was not represented

Hearing dates: 19th and 20th October 2006
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Judgment
Mr Michael Furness QC:

1.	This is a claim by Yvette Hilary Garland under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) against the estate of her late father Cuthbert Peter Garland (“Mr Garland”). The first defendant is Mr Arnold Morris, who is the executor of Mr Garland’s last will. He has played no active part in these proceedings, although he has given evidence. The second defendant is the claimant’s sister, Beverley Joy Moore. The claimant and the second defendant are the only children of Mr Garland.

2.	The claimant, who is 43 years old, has three children, Lynnden, aged 21, Sian, aged 9, and Marcus, aged 3. She has never married. The second defendant, who is 46, married Michael Moore in 1981. She and her husband have two children, Richard who is 23 and Alice who is 19. Mr Garland left a will, dated 5th September 1995, and a codicil dated 17th June 1999. By his will and codicil Mr Garland, in the events which have happened, left some modest legacies outside the family and his personal chattels to the second defendant. He gave a legacy of £5,000 to each of the second defendant’s children and the two oldest of the claimant’s children (the claimant’s youngest child was not born until after Mr Garland’s death). The residue of the estate was left to the second defendant. The claimant was given nothing.

3.	I will deal in more detail with the basis of the claim below, but, in summary, the claimant argues that the will and codicil fail to make reasonable provision for her maintenance within the terms of section 1 of the Act. She bases her claim principally on her severe financial need, and the difficulties she faces in earning money to maintain herself and her two younger children. At the trial her claim resolved itself into a claim for two lump sums. One is intended to be applied in renovating the claimant’s home, the works in question being estimated to cost £19,000 plus VAT. The other is to enable her home to be extended by adding a third bedroom in the loft, at a cost of £15,000 plus VAT.

4.	Mr Garland died on 25th February 2001 and probate of the will and codicil was granted on 10th May 2001. No letter of claim was written on behalf of the claimant until 21st November 2003, and proceedings were not issued until 17th May 2004, over three years after probate, and over 30 months outside the time limit for claims laid down by section 4 of the Act. An order extending time for issuing proceedings was made by Deputy Master Cousins on 2lst April 2004, the Deputy Master having accepted the claimant’s explanation that she was unaware of her right to make a claim until she consulted a Citizens Advice Bureau in 2003, after discussing the matter with a friend. The Deputy Master considered that the claim had a reasonable prospect of success and that, notwithstanding the distribution of the estate, there were assets available to satisfy the claim, if successful, which could be realised without undue hardship to the second defendant.

The factual background to the claim

Events up to the death of Mrs Garland

5.	The claimant and her sister grew up in their parent’s home in Blackwater, Hampshire. The claimant described her childhood as fairly happy until her early teens when her parents’ marriage began to break down and her parents began to have frequent arguments. In early 1982 Mrs Garland left home to live with a man called Alex. The claimant had known about her mother’s relationship with Alex for some time before her mother left, but had said nothing to her father about it. By the time Mrs Garland left the family home the second defendant had already left home to get married. This left the claimant living with her father. Their relationship at this time was clearly difficult. Mr Garland resented the fact that the claimant had not told him about Mrs Garland’s affair with Alex. He refused to give the claimant a key to the house, apparently because he was afraid that she would give it to her mother. He was upset that the claimant continued to visit her mother, whom he was having followed by a private detective. That said, he wrote a note to her at the time (dated 29th November 1982) in which he expressed the hope that she would continue to be happy at home, while at the same time remaining on the best possible terms with her mother.

6.	Because she did not have a key to the house the claimant was obliged to be home before midnight so as not to disturb her father after he had gone to bed. On one occasion, when the claimant returned home after midnight, her father refused to let her into the house. As a result she spent the night at the home of the mother of one of her friends, This lady suggested that the claimant moved in with her which she did. This was in about late 1982 or early 1983. After leaving her father the claimant saw her mother on a regular basis. She saw her rather more often than the second defendant did, because the second defendant did not approve of her mother’s relationship with Alex and refused to see her mother in Alex’s company. By this time the claimant had, left school, but with only modest qualifications having obtained a CSE in English and in mathematics. She had a number of temporary jobs at this time and, with her mother’s encouragement, she began a floristry course at the local adult education centre. At some point in mid 1983 the claimant’s evidence is that Mrs Garland told the claimant that she was going to change her will so as to leave the claimant everything. The claimant says that Mrs Garland explaineçl that she wanted to make sure that if anything happened to her the claimant would be able to buy a house. Mrs Garland was apparently less worried about the second defendant’s financial position because she had married and already had a home of her own. Mrs Garland did indeed make a new will which left her entire estate to the Claimant. Sadly, Mrs Garland committed suicide on the 7th November 1983.

7.	Very shortly before her death Mrs Garland had a conversation with the second defendant. In this conversation Mrs Garland was visibly distressed. She told the second defendant that the claimant had bullied her into making a will in her favour and that “if Yvette wants the money so badly she can have it”, Mrs Garland said that she had “had enough” of the claimant, who was always pestering her about money, and that she was exasperated at the claimant’s failure to get a job. This evidence casts a rather different light on the reasons for Mrs Garland making the will she did than is apparent from the claimant’s evidence. I accept the second defendant’s evidence about this conversation, and I think reasonable to infer that the claimant’s relationship with her mother was rather more strained that claimant’s own evidence suggests. But Mrs Garland was clearly emotionally disturbed at the time, and she committed suicide only two days later. It would not be fair to judge the claimant’s behaviour towards her mother on the strength of this conversation. Nor do I think that, to the extent that Mrs Garland’s complaints were justified, this has any great relevance to the merits of her claim in these proceedings.

Events from the Death of Mrs Garland to the Death of Mr Garland

8.	Understandably, in the circumstances, Mrs Garland’s funeral seemed to have been a very fraught affair for all concerned. There was an argument about the fact that the claimant refused to stand with the second defendant and Mr Garland at the funeral. I accept the second defendant’s evidence that this was an incident which upset Mr Garland but I also accept the Claimant’s explanation that the reason she was not standing with Mr Garland and her sister was because she wished to stand with Alex and keep him company. The second defendant also recalls that the claimant tried to stop her mother’s hearse from leaving from the family home, contrary to her father’s wishes. The claimant says she recalls saying she did not much mind where the hearse left from. Shortly before the funeral, the second defendant’s evidence is that there were several discussions between Mr Garland and his two daughters about the fact that the claimant had inherited the whole of her mother’s estate. This concerned Mr Garland because Mrs Garland’s estate was almost entirely derived from a payment which he himself had made to her under a separation agreement about a year before she died. The second defendant also recalls that Mr Garland talked about challenging Mrs Garland’s will, either on the basis of Mrs Garland’s lack of capacity, or under the Act. According to the second defendant, these discussions ended with Mr Garland expressing the view that in the circumstances it was right that on his death he should leave all his estate to the second defendant. The second defendant says that the claimant accepted that this should be the position.

9.	The claimant, on the other hand, has no recollection of any such agreement. She recalls that she and her sister and her father all attended at her mother’s solicitor’s offices to hear the reading of her mother’s will, which was clearly another difficult occasion. The claimant says that the second defendant although knowing in advance the contents of the will, was still upset at the reading and said, afterwards, to the claimant that “when Dad dies you are not having any of his money”. The Claimant says that the second defendant repeated this statement adding “do you hear me” to which the claimant says she responded “yes”, not intending to indicate anything beyond the fact she heard what her sister had said.

10.	It is perhaps not surprising that recollections of what was a clearly a very traumatic and emotional time for both sisters differ. It seems to me likely, on the basis of the second defendant’s evidence, that around the time of Mrs Garland’s funeral there was a more extensive discussion about Mrs Garland’s will, and about what Mr Garland might do with his own estate, than the claimant now recalls. During that discussion I am sure that the second defendant made it clear that she thought the fair result would be that she should inherit all of her father’s estate. What is less clear is the extent to which Mr Garland gave a clear commitment to do this, and the extent to which, if he did so, the claimant agreed to him doing so. What is, however, clear is that the existence of any agreement or understanding of this sort did not feature among the reasons given by Mr Garland to his solicitor for leaving the claimant nothing in his will (see below). If Mr Garland attached little or no weight to what was said on this topic at the time of the funeral, that must either be because the discussions did not reach the sort of clear-cut resolution which the second defendant now recalls, or because Mr Garland did not believe that any agreement made by the claimant at the time should be held against at a later date. Because Mr Garland did not think this a significant issue when he came to make his own will, I do not think I should attach any weight to it either.

11.	Mrs Garland’s estate amounted to some £33,000. The Claimant spent £29,995, of this in buying a house at 539 London Road Camberley, where she has lived ever since. Legal fees and other costs apparently accounted for the bulk of the remainder of her inheritance. After her mother’s death the claimant abandoned the floristry course she had been engaged on. She said this was because her mother was no longer available to help her with her written work. She went on to state benefits. When Lyynden was aged 4 (ie in 1989) she began work as a care assistant, but this was not well paid work, and she was hampered by the need to arrange care for Lyynden. She gave this work up after the birth of Sian in 1997, when she went on to income support. At this time she attended literacy and numeracy classes and supplemented her income with a paper round and other part time work. She still attends literacy classes when she can.

12.	The claimant says that she was very angry with her father following her mother’s death, because she blamed him for her mother’s suicide. She visited him a couple of times at the former family home (which was only a couple of miles from where she lived) and occasionally met him at the local shops (she says she met him 6 to 8 times in the year following her mother’s death) The claimant described her relationship with her father at this time as strained, but still on speaking terms. In the winter of 1985 Mr Garland came to 539 London Road at the claimant’s request to lay some tiles, but after this he told her that he was too old to do any more work for her and he did not visit again.

13.	Mr Garland remarried on 1st March 1986 and moved with his new wife, Maisie, to live in the Wirral. The claimant was not invited to the wedding — she learned of the marriage because her father wrote to her in April 1986 telling her about it. The terms of a contemporaneous letter to the second defendant suggest that at this time Mr Garland was deliberately concealing his new address in the Wirral from the claimant. It appears that Maisie did not take to the claimant — when the claimant met her father and Maisie in the street Maisie simply ignored the claimant. Subsequently the second defendant told the claimant that Maisie disapproved of the claimant.

14.	The claimant never saw or spoke to her father again after he left for the Wirral. The claimant also lost touch with her sister after 1983, having visited her only once, in 1992, shortly before the second defendant and her family moved to live in Belgium. They only met again in December 1997 when the second defendant visited the claimant at her home to give her £250 from their father. Mr Garland had been told by the second defendant that the claimant had a new baby (Sian) and wanted to give the claimant money so that she and the children could have a good Christmas. The second defendant told the claimant that their father had asked whether she and the baby were alright. He also wanted to know whether gifts of money would affect her benefits. The second defendant gave the claimant their father’s address and the claimant wrote to thank him for the money and to tell him that she was going to use it to buy a washing machine. Thereafter Mr Garland resumed sending birthday cards to the claimant and her two children and on at least one occasion gave the claimant and the children £10 each for Christmas. The claimant occasionally wrote to her father and sent photographs of the children.

15.	The claimant was questioned about why from 1997 onwards she never attempted to arrange a meeting with her father, or even to get his telephone number so that she and her children could speak to him. By this stage 1997 Maisie had died and her father was living alone. The claimant’s failure to improve her contact with her father was not because she bore him any ill-will — at least by 1997 the antagonistic feelings prompted by her mother’s suicide seem to have faded away. Rather she cited a number of practical difficulties. She said there was nowhere for her father to stay at her house, which was in a mess, and she said that she could not afford a train fare to the Wirral. In my view the claimant could have made more effort to re-establish contact — for example by suggesting that her father visited London (perhaps staying in a hotel) so that she and the children could meet him. I think the most revealing answer given by the claimant was at the end of the cross-examination on this issue when she said that she just assumed that they would meet up sometime. In other words she did not make an effort to arrangement a meeting because she assumed that a meeting would happen without any effort on her part — presumably arranged by her father, or someone else. In the end, I think the claimant simply could not be bothered to make more of an effort to reestablish contact.

16.	The second defendant had a much closer relationship with her father than the claimant did. She was invited to, and attended, her father’s wedding and subsequently she and her family visited her father’s bungalow in the Wirral, both while he was married, and after Maisie’s death. Mr Garland and Maisie visited the second defendant’s family while they lived in the UK. Initially the second defendant’s husband, Michael, had employment with a computer company, but he lost his job in 1991. A result, the family were unable to keep up the mortgage payments on their house. This prompted a move by the whole family to Belgium, where Mr Moore set up as a self-employed consultant. The second defendant obtained a secretarial post with the European Commission, and, while Mr Moore’s self-employed income remains precarious, the second defendant has become the main earner in the family. Mr Garland visited the family in Brussels. It is clear from the surviving correspondence, and from the second defendant’s evidence, that Mr Garland took a close interest in the welfare of the second defendant and her husband and children. Following the family’s move to Belgium Mr Garland assisted them financially by giving them £3,000 a year. It was Mr Garland’s wish that both the children should go to university in the UK, and he offered to pay for this.

17.	Mr Garland made his last will in September 1995, after Maisie’s death. This will was drawn up by Mr Morris, the first defendant. Mr Morris explained that he had had quite lengthy discussions with Mr Garland about his affairs and his family because he was also advising him with a dispute between Mr Garland and Maisie’s son over Maisie’s will. This had led to Mr Garland himself advancing a claim under the Act against Maisie’s son, so, as Mr Morris explained, Mr Garland was well aware of the possibility of a will being challenged under the Act. Mr Morris said Mr Garland gave careful consideration to the terms of his will.

18.	Mr Garland told Mr Morris a number of things about the claimant. He told him she had made no attempt to contact him since 1986 and had not invited him to visit her. He said that he disapproved of her life style as an unmarried mother (with no established relationship with the child’s father) who was apparently content to live on state benefits. He said he thought that state benefits were adequate to maintain the claimant and her children. He also made the point that the claimant had inherited all of his first wife’s estate and in consequence had a house free of mortgage to live in, He therefore wished his will substantially to benefit the second defendant and her family, who were experiencing financial difficulties in Belgium. He said he wanted the second defendant’s children to go to university, and there was some discussion about whether Mr Garland’s will should establish a trust for their benefit, although in the end it was decided that it would be preferable for Mr Garland to leave everything to the second defendant, on the basis that she would then give financial assistance to the children. Mr Morris’s assessment, which I accept, was that Mr Garland’s decision to leave nothing to the claimant was not based on resentment or spitefulness but reflected his wish that she should not receive any benefit as she had made no effort to maintain any contact or association with him or involve her with her son.

19.	It is notable that Mr Garland said nothing about the claimant being in any way responsible for his first wife’s suicide. Nor did he refer to any behaviour on the part of the claimant, at Mrs Garland’s funeral or otherwise, as a reason for not benefiting the claimant. Nor, as I have already observed, did he say there was any understanding reached with the claimant that she should not have any benefit under his will. I conclude that these issue were not factors in Mr Garland’s decision to leave nothing to the claimant.

20.	While on the subject of the thinking behind Mr Garland’s testamentary dispositions, on one occasion, in conversation with the second defendant, Mr Garland regretted the fact that the family had split up and said to the second defendant: “you will not let Yvette starve, will you?”. The second defendant said that Yvette was on income support, so would not starve, but that she agreed that she would not let this happen.

Mr Garland’s death and his estate

21.	Mr Garland died in a fire at his home 25th February 2001. He was 81 years old. After payment of all legacies, including £5,000 each to the claimant’s two elder children and to the second defendant’s two children the net residue distributed to the second defendant was £284,361. The whole of the residue was distributed to the second defendant before the claimant intimated she wished to make a claim under the Act. I explain below what the second defendant did with the money and investments she received.

Events following Mr Garland’s death

22.	Following Mr Garland’s death there was considerably more contact between the claimant and the second defendant that had been the case previously. Of course they both attended their father’s funeral, and they also travelled to the Wirral for a blessing of their late father’s house. The second defendant paid for the travel and accommodation costs for the claimant and her children on both occasions. After Mr Garland’s death the second defendant told the claimant that the claimant’s two elder children had been given legacies under the will, but that the claimant had been given nothing. The second defendant asked the claimant whether she needed money for herself. This led to a number of requests for cash from the second defendant, for items such as vets bills for her dog, and items to do with the house. The claimant accepts that she received gifts of around £6,000 (which includes the travel and accommodation costs referred to above) from the second defendant at this time.

23.	The claimant’s evidence is that in the months following their father’s death her sister told her on a number of occasions about the remark made by Mr Garland to the second defendant; “do not let Yvette starve”. The claimant also said that the second defendant told her on a number of occasions that Mr Garland had said that he wanted to help the claimant with her house. The second defendant accepted that she had told the claimant once about their father saying “do not let Yvette starve”, but she denied that Mr Garland had expressed any wish to help the claimant with her house, and she denied that she had told the claimant that he had done. On this issue I prefer the second defendant’s evidence. I do not believe that Mr Garland intended to help the claimant to renovate her house. That is quite inconsistent with what he told Mr Morris when his will was drafted, when he made it clear that all of his estate was to go to the second defendant and her family and none of it to the claimant. Had he wanted to help the claimant in this way he could have done so in his lifetime, or by his will, or a codicil to his will. There is in any case no evidence that Mr Garland was aware of the extent of the disrepair of the claimant’s house before he died.

24.	There was some dispute as to the source of the money given to the claimant — did it come from the second defendant’s own resources, or from Mr Garland’s estate. The claimant sought to argue that these payments were from the estate, and showed that the second defendant accepted that there was a moral obligation on her, and on Mr Garland, to make provision for the claimant. It is not possible to tell on the evidence where all of the £6,000 came from. This is perhaps unsurprising because as the sole residuary beneficiary it did not matter to the second defendant - the estate’s money was her money. And I agree with the second defendant that it does not matter in these proceedings either. In my judgment the second defendant made gifts to the claimant out of sympathy for her financial difficulties, but not because she felt morally obliged to do so out of the estate, and certainly not because she thought that she was fulfilling Mr Garland’s wishes in doing so.

25.	The claimant said that she was led to believe that the second defendant was originally proposing to do more for her than merely give her £6,000. The second defendant agreed that she asked the claimant if there was anything she needed, and that they discussed plumbing problems and other fairly minor matters to do with the house, but that she gave no indication of proposing to pay for any more extensive work. It may be that the claimant misunderstood the claimant’s position, or was perhaps engaged in wishful thinking. I think it implausible that the second defendant made anything more than very limited promises about financial help for the claimant.

The law

26.	So far as relevant section 1 of the Inheritance (Provision for Family and Dependence) Act 1975 reads as follows:

“(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons -

	(c)	A child of the deceased;

that person may 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 a combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

(2) In this Act “reasonable financial provision” —

(b)	in the case of any other application [than under section 1(1)(a)] made by virtue of subsection 1 above means such financial provision as would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

27.	Section 2 of the Act sets out the powers of the Court to make orders in the event that an application under section 1 succeeds. These orders include the making of periodical payments lump sum payments and orders for the transfer of property, in each case out of the net estate of the deceased. Section 3 sets out the matters to which the Court is required to have regard in exercising its powers under section 2 and it reads as follows:

“(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 orany 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.”

(4)	In considering the matters to which the Court is required to have regard under this section, the Court shall take into account the fact as known to the Court at the date of the hearing.

(5)	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.”

28.	For present purposes section 25 defines “net estate” as “all property of which the deceased had power to dispose by his will’... less the amount of his funeral testamentary and administration expenses debts and liabilities including any inheritance tax payable out of his estate on death”.

29.	Counsel for the parties cited a large number of authorities to me on the correct approach to the application of the statutory provisions to the facts of this case. The starting point is the decision in Re Coventry [1980] Ch 361 where, in a passage approved by the Court of Appeal at pages 487H — 488F Oliver J said:

“It cannot be enough to say ‘here is a son of the deceased; he is in necessitous circumstances; here is property of the deceased which could be made available to assist him but which is not available if the deceased’s disposition stand; therefore those dispositions do not make reasonable financial provision for the applicants.’ There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made.”

The Court of Appeal went on to make clear that this did not mean that “a moral obligation” was an essential requirement for a claim by an adult child, see per Goff LJ at page 487G:

“Oliver J nowhere said that a moral obligation was a pre-requisite of an application nor did he mean any such thing. It is true that he said a moral obligation was required, but in my view that was on the facts of this particular case, because he found nothing else sufficient to produce unreasonableness.”

30.	It has been made clear by the Courts since Re Coventry (to the extent it was not already clear following the decision of the Court of Appeal in Re Coventry itself) that claims by adult children are assessed on the same basis as any other claim under section 1 of the Act. There are no special requirements or hurdles that adult children have to overcome in order to claim. This point was made by Browne-Wilkinson J’s decision in Re Dennis [1981] 2 All England 140 at l45B and was reiterated by the Court of Appeal in Espinosa v Bourke [1999] 1 FLR 747. In the latter case Butler-Sloss LJ set out extensive citations from the earlier authorities at pages 752D — 755D which I do not propose to repeat here. Butler-Sloss LJ then went on to say (at page 755F):

“From the judgments of this Court in Re Coventry to the present day, it should be clear that no gloss has been put on sub-section (1)(d). An adult child is, consequently, in no different position from any other applicants who has to prove his case. The Court has to have regard to section 3(l)(a) — (g) and assess the relevance and the weight to be given to each factor on the list, If the applicant is of working age with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scale. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator’s disposition. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act.”

31.	The passage referred to from the judgment of Sir John Knox in Re Hancock [1998] 2 FLR 346 at 357, reads as follows:

“In the great majority of contested applications the Court is involved in a balancing exercise among the many factors to which section 3 of the 1975 Act requires the Court to have regard. Some factors may be neutral but many will go into the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. In Re Coventry ... there was placed in the scales a factor of major weight against the proposition that there had been a failure to make reasonable financial provision and that was that the plaintiff was capable of earning, and was earning, his living. This meant that for the scales to be turned and for the courts to find that there had been a failure to make reasonable financial provision for the plaintiff a factor of great weight would be needed in the opposite scale. Typically, the weightiest factor in favour of an applicant seeking to show there has been a failure to make reasonable financial provision for him or her, is present when there is found to have been a moral obligation on the deceased to make financial provision for the applicant. But that factor was held ... not to be present in Re Coventry [The] Argument that an adult child cannot make a successful application, unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the Court to decide that the scales fall in favour of the conclusion that there has been a failure make reasonable provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry, or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court’s conclusion that there has been a failure to make reasonable financial provision but the use of the phrase “special circumstance” does not advance the argument. The word “special” means no more than what is needed to overcome the factors on the opposite scale.”

32. 	In addition to the citation of authorities setting up the general principles to be applied, counsel also referred me to a number of decisions a view to persuading me to conclude that the lack of provision for the claimant was, or was not, unreasonable. The claimant, in addition to Espinosa, relied on Re Dennis and the decision of Munby J in Myers v Myers [2004] EWHC 1944 (Fam). The second defendant relies on Williams v Johns [1988] 2 FLR 475, Re Jennings [1994] Ch 286, Robinson v Bird [2003] WTLR 529 and Cameron v Treasury Solicitor [1996] 2 FLR 716. Other cases where the claim succeeded which Mr Holbech, for the second defendant, helpfully referred me to, but sought to distinguish are Re Abram [1996] 2FLR 379, Re Pearce [1998] 2 FLR 705, and Gold v Curtis [2005] WTLR 673. While I have considered these authorities there is no useful point to be served in summarising them here. None of them has the particular combination of factors present in this case, so the outcomes in those cases do not offer a secure guide to the correct in this case.

The factors which are relevant to the court’s decision

The financial resources and needs of the Parties

The claimant

33. 		There is no doubt that the claimant lives in very difficult financial circumstances. Her only asset is the house. By her own admission, between its purchase in 1984 and 2001 she spent virtually nothing on repairs to the house, with the result that on 25th October 2001 the local authority determined that it was not reasonably fit for occupation. In particular there was external disrepair to the roof, guttering and down pipes, and rotting windows, and internally there was evidence of damp and of rotting floorboards, skirtings and door frames, The gas fire and the electrics were found to be dangerous and the kitchen work surfaces were in disrepair and unhygienic. As a result the claimant became eligible for a renovation grant under the provisions of the Housing Grants, Construction and Regeneration Act 1996. The claimant obtained two estimates for the necessary work in the sums of £29,282 and £31,000, plus VAT. The local authority told the claimant that she would be liable to repay any amount of grant over £20,000 and that they would take a charge on the house to secure this. The claimant wished to avoid this and agreed with the local authority that she would undertake more limited works, costing £20,000 only. Unfortunately this sum was insufficient to render the house completely water tight, and some damp problems remain. It appears that the internal plaster work and decoration are still in a very bad state. Also the taps are defective in the bathroom and the claimant says she is unable to afford a plumber to repair them. She failed to notify the local authority of the defects in the builders’ works within the 6 month defects period, with the result that the local authority has refused to put them right. The heating does not appear to work properly — the claimant says the house is very cold even with the heating on.

34. The house also suffers from rodent infestation — the claimant has caught two rats and a mouse in traps inside the house. She claims to be unable to afford the £11.70 call out charge for the local authority pest officer to visit to deal with problem.

35. Finally, the house has only two bedrooms. One is occupied by Lyynden and the other by the claimant and her two younger children. Lyynden, who is 21, works as a labourer and earns £250 per week. He pays £30 per week for board and lodging, and refuses to pay more because he says the house is in such a bad state of repair. He also pays £10 per week for his council tax.

36. The parties are agreed that even in its current state the house is worth about £150,000.

37. The claimant’s has a weekly income of £204.56, which is made up of~164.56 income support and child benefit and £40 per week from Lynnden. Her weekly expenditure is as follows:
Council tax for Lyynden	£10
Gas electricity and water	£38.19
Life and health insurance	£10.10
TV Licence                                      £2.73
Food	£65.00
Dancing classes for Sian                  £6.30
                                                         £132.32

At present the claimant is paying off a loan of £500 taken out in September 2006 for school uniform and sports equipment for Sian at £8 per week. This is deducted from her income support. In evidence the claimant said that there were probably other items not on that list, and that she ended up spending all her income every week.

38. As at the date of the trial the claimant had debts of £5,050.97, owed on various store cards or credit arrangements with shops. The largest single debt was £2,156.47 owed on her Barclay’s credit card. Obviously interest and other charges mean these debts are increasing. She tries to pay £50 to £60 per week towards these debts, but does not always manage this, because of other expenses, such as children’s birthdays. She has no savings — all the money given to her by the second defendant has been spent, as has Sian’s £5,000 legacy. The life assurance policy pays £200,000 in the event of her death and the health insurance policy pays for up to £9,000 of treatment if she contracts cancer. If she does not claim on the policy in the next 15 years she will receive a refund of premiums without interest.

39. She receives no financial support from the children’s father, Paul, and, apart from the odd £5 or £10 handed over on occasional visits she never has done. Paul drinks to excess and takes drugs and suffers from violent mood swings. He has a history of violence against the claimant and, indeed, has served an 18 month prison sentence for assaulting her. The claimant is of the view, and the Child Support Agency concur, that it would pose too great a risk to the claimant’s personal safety to try to force Paul to pay maintenance.

40. For the future, and subject always to the constraint of having to care for her two youngest children, the claimant is in good health and able to work. She has no qualifications, and is not very proficient at reading or arithmetic, so only low-paid employment would seem to be available — either shop or factory work, or work as a care assistant, a job which she successfully undertook for some years before the birth of her second child. Of course, to some extent her earnings would result in a reduction in her benefits, but it does appear that she would be able to improve her income if she was able to undertake work on something approaching a full-time basis. The claimant estimates that if she were to work 16 hours per week she would be between £10 and £30 per week better off. The reason work is not an option at the moment is that her youngest child is still under school age (he has just turned 4).

41. So far as concerns the claimant’s needs, she has a need for a higher income, to be able to maintain her family more comfortably without running into debt, and she needs cash to complete the renovation of her house, and she needs more space to accommodate her family.

42. There is one important point to bear in mind about the state of the claimant’s home, and that is that it was her choice not to have a council grant to renovate it completely. The terms on which the grant in excess of £20,000 were offered were that it would remain charged on the property carrying interest at 4% until the house was sold, unless the claimant paid it off sooner. This offer would have allowed the claimant in effect to use part of the value of the house to improve its condition. The claimant chose instead to have more limited works carried out, and preserve the whole value of the house intact. That was her choice. It seems to me that the current disrepair in the property is in large measure due to the claimant’s choice to preserve the value of her asset at the expense of putting it properly in repair. Put another way, she has declined to spend part of the inheritance she received from her mother on repairing her own home, but she now expects part of her father’s estate to be applied, at her sister’s expense for the same purpose.

43. Turning to the clearly unsatisfactory state of affairs in which she and the two younger children share a room, that problem arises because she allows Lyynden to use the second bedroom. He only pays £30 a week for board and lodging, and after taking account of his likely share of the weekly food bill it looks as though he only pays around £10 per week for the room. The claimant is suggesting in these proceedings that the court might, in addition to ordering that she receive a lump sum to complete the renovation of the house, pay another lump sum of £15,000 plus VAT in order to extend the house by adding a third bedroom in the loft. This seems to me to be a disproportionate response to a problem which could be solved at a cost of around £10 a week if Lyynden were to leave and find his own accommodation.

The second defendant

44.	The second defendant’s assets have been inflated by the receipt of the residue of the estate. Before the estate was distributed she and her husband owned the following assets jointly (the values are the current values, and the value of the house therefore reflects the fact that £35,000 from the residue was spent on its renovation):
	House in Brussels	£306,000
	2 Endowment policies	£45,619
	Furniture	£13,000
	Car	£9,000

The house and the policies are charged with a mortgage with £107,168 outstanding. The gives a net value of £266,451, half of which (£l33,225) belongs to the second defendant.

45.	The second defendant received £238,156 in cash and £46,204 in investments from the estate, a total of £284,361.31. Some of the investments were then sold at a loss. The second defendant applied the cash and investments as follows:
	Purchase of a flat in London	£193,398
	Renovation of Brussels house	£35,000
	Repayment of debts	£35,600
	Pickfords removals	£742
	Estate administration	£6,500
	Gifts to Yvette	£6,000
Loss on investments			 £282,518

The flat in London was purchased for £358,398 inclusive of costs and stamp duty, with the benefit of a mortgage of £165,000. The use of Mr Garland’s estate for this purpose had been discussed with him by the second defendant before his death. The second defendant and her husband bought this flat for a number of reasons — first it was to provide accommodation for their children while they attended university in London. Secondly it was to provide a source of income, because other rooms could be let out to other students. Thirdly it was to give the second defendant and her husband a footing in the London property market. Their intention is to retire to live in the UK, in which case they will need somewhere to live in due course. The flat, or its proceeds of sale, is intended to meet this future need.

46.	The sum of £6,500 for estate administration reflects the costs incurred in several visits to the UK by the second defendant, sometimes accompanied by her family, in order to wind up her father’s affairs and make arrangements for and attend his funeral, as well as some costs of maintaining her father’s bungalow before it was sold. The amount of debts which were repaid reflects the financial difficulties which the family had in making ends meet in the years before Mr Garland’s death and before the estate was distributed.

47.	The second defendant and her husband have a joint income of £42,000 before tax. In addition there is a rental income of about £13,300 from the London flat. After payment of tax and sums due under the mortgages of their two properties they have a net disposable income of about £20,000, or about £400 per week. Their outgoings are as follows:
University fees and living expenses for daughter Alice			4,800
Insurance of flat and maintenance and rates on Brussels house	1,400
Life insurance premiums			2,573
Health insurance			4,875
Car expenses			2,050
Holidays			1,800
Food and Clothing			4,500
Travel entertainment and personal expenses				1,800
			23,798

The excess of expenditure over income is met from borrowing.

48.	In August 2005 the second defendant and her husband obtained a further mortgage advance on the flat of~200,000. £55,000 was given to their son Richard towards the purchase of a home of his own, The remainder of the sum advanced appears to have been spent on living expenses and on discharging further debts incurred since the initial estate distribution.

49. So far as concerns the second defendant’s financial obligations and resources for the future, she and her husband are maintaining their daughter, Alice, in London for a 4 year university course, of which part of the first year has been completed. As noted above the cost of this is about £4,800 per annum. Their son Richard left university in the summer of 2006 and is no longer financially dependent. The second defendant is now aged 46, but is suffering from diabetes. Her husband is aged 56 and his hearing is failing. Their current earning capacity is therefore far from guaranteed. So far retirement provision is concerned, because of her limited national insurance contributions paid in this country the second defendant will only be entitled to 33% of the full state pension. She will also be entitled to some sort of pension from her Belgian employment, although it is unclear to me how much that will amount to. Neither the second defendant nor her husband are entitled to a state pension in Belgium. The second defendant is concerned about whether she and her husband will be able to support themselves in their retirement, and I accept that those concerns have some foundation.

Any obligations and responsibilities which Mr Garland owed to either party

50. As noted above, Mr Garland assumed a responsibility to assist in the maintenance of the second defendant and her family in Belgium. He strongly encouraged her children to undertake university education and said that he would pay for it. He undertook no similar obligations to the claimant — he made her an isolated gift of £250 in 1997, but otherwise sent only occasional birthday and Christmas presents. I do not consider that his isolated request to the second defendant that she should not let the claimant starve was indicative of any assumption of moral responsibility on his part for her maintenance.

The size and nature of the net estate

51. As noted above the net estate at the point of distribution consisted of cash and realisable investments of £284,361 plus a Scottish time-share unit which is not easily realisable, and is of small value.

Any physical or mental disability of the parties

52.	It was submitted on behalf of the claimant that she suffers from “educational difficulties”. She did in fact leave school with a CSE in English and in mathematics, which I take indicate a basic competence in these skills. She has worked as a care assistance for some years, which is a job which requires some reading and writing ability. It is also fair to say that she appeared to have no difficulty in court in reading and understanding the documents she was shown in cross-examination. That said, I accept that she is not proficient in either skill and this limits her employment opportunities. It may be that a care assistant job is about the limit of her abilities, otherwise she would be confined to working in a shop or a factory or doing cleaning work. The claimant is in good physical health.

53.	The second defendant has been diagnosed as suffering from diabetes, which may limit her earning capacity in the future.

Any other matter, including conduct, which the court considers relevant

54.	There are a number of issues to consider under this head. The first is the fact that the claimant inherited the whole of her late mother’s estate in late 1983, and has, as a result, had a home to live in ever since 1984 which she owns outright. The second defendant inherited nothing from her mother, and she and her husband have had to buy their successive family homes on mortgage.

55.	The second important matter to take into account is the claimant’s conduct towards her father (and her father’s conduct to her) and the estrangement which arose between them. I have already indicated that I do not place ~ny weight on the arguments which occurred at the time of the first Mrs Garland’s funeral, nor on any supposed agreement as to the destination of Mr Garland’s estate entered into at that time, Nor do I take into account any ill-will which may once have existed between Mr Garland and the claimant over the circumstances over the breakdown of Mr and Mrs Garland’s marriage and Mrs Garland’s suicide. At least by the late l990s it appears that neither party bore the other any animosity over this, and Mr Garland does not seem to have taken it into account when making his will. What is, however, of importance is the fact that the claimant and her father neither spoke nor met at any time in the last fifteen years of Mr Garland’s life. It seems to me that this is a factor of considerable relevance in deciding on reasonable provision for the claimant, regardless of who, if anyone, was to blame for this state of affairs.

56.	The claimant was not responsible for the difficult situation in which she and her father found themselves following the break-up of her parents’ marriage and her mother’s death. But she does not appear to have shown much interest in meeting her father or made much effort to do so in the period between her leaving home in 1983 and her father’s departure to the Wirral in 1986. I have already pointed put that I think the claimant could have made more effort to arrange a meeting, or at least telephone contact, with her father after Mr Garland renewed contact with her in 1997. But it is also fair to say that Mr Garland himself did not take any initiative to arrange a meeting with his daughter. Neither seems to have had any real desire to meet the other,

57.	The second defendant made a number of points to the effect that the claimant’s unfortunate financial position was to a large extent her own fault. The first point was that back in 1984 she had bought a house which was not good value for money, and which was, due its position, always likely to appreciate in value at a lower rate than others in the same area. Then it was said that in the past she l~ad been offered a generous price for the house by a developer which she was wrong to reject. I do not think the second point was made out on the evidence. There was some evidence for the first contention, but I am not inclined to criticise the claimant for her choice of house, even if was somewhat ill-advised. She at least had the good sense to use her inheritance to buy a house, which has proved a good investment and has provided her and her family with a home.

58.	The second defendant then suggested that it was irresponsible of the second defendant to have had three children by a man who (at least after the first child) she must have realised would never make any effort to contribute to their maintenance. To this extent, it was argued, the claimant was the author of her own misfortunes. Undoubtably there is some truth in this, and I accept that the claimant must bear some responsibility for the position she now finds herself in. However, having heard the claimant’s evidence, it is clear to me that she is someone who has some difficulty in organising and taking decisions in her life. While it would clearly have been sensible for her to have broken off her relationship with Paul long ago, I am unsurprised that she lacked the resolve to do this.

59.	I also take into account the fact that since Mr Garland’s death the second defendant has given the claimant some £6,000. To this extent, therefore, the claimant has already received some small provision at the second defendant’s expense.

60.	Finally under this head there is the fact that the claimant delayed bringing her claim until over 30 months after the six month period. For 30 months, therefore the second defendant was entitled to assume that the residue of the estate was hers to spend as she wished. Apart from the paying off of pre-existing debts, £35,000 was spent on improvements to the family home in Belgium, and most of the remainder was spent on a flat in London. All this was done before the claimant notified any intentin to make a claim. If any significant sum is to be realised for the benefit of the claimant it is that flat which will have to be sold, or remortgaged (although the second defendant doubts very much whether a further remortgage is feasible). Considerations such as these do not, in my view, affect the basic question of whether the disposition made by the will was reasonable, for the purpose of section 1. But they may cause a court to make a less generous order than might otherwise have been the case had the application been made within time and the estate had not been distributed, or perhaps no order at all (see the observations of Megarry J in Re Salmon [1981] 1 Ch 167, 176, and Re Hancock decd. [1998] 2 FLR 346).

Conclusion

61.	Having reviewed all the above factors, its seems to me that the most important factors are first the financial position of the claimant, living on a very low income in sub-standard housing. But bearing in mind that, particularly in relation to the house, she bares some responsibility for its defects. Second there is the close relationship which Mr Garland had with the second defendant. She is better off than the claimant but still in genuine need of the benefit which she was given under his will. Thirdly, there is the fact claimant never met or spoke to her father in the last fifteen years of his life and made no real effort to do so. Fourthly there is the fact that the claimant received all of her mothers estate and has owned her own home for the past 22 years.

62.	I accept that the claimant’s need is a powerful factor in her favour. Although she is able to earn her own living, the fact that she is responsible for two young children, one below school age, means that she cannot exploit her earning capacity at all at present, and only to a limited extent even after Marcus attends school. On the other hand, the estrangement between herself and her father and the fact that she has already had the benefit of her mother’s estate are factors which count against her. This is not a case in which the estate, even before its distribution, was so large. that there is more than enough to go round for everyone (cf Myers v Myers (sup)). The second defendant and her husband are not well off and are in the course of putting two children through a university education in London without any state assistance.

63.	Although I have not found this an easy case, I have come to the firm conclusion that the claimant has failed to establish that it was unreasonable in all the circumstances for her father to make no provision for her. I think her father was reasonably entitled to conclude that the fact that the claimant had not met or spoken to him for so long, and the fact that she had already had a relatively substantial benefit from her mother’s estate, meant that she no longer had any reasonable claim on his bounty. It may well be that he did not have a full appreciation of the extent of the claimant’s financial difficulties, but even if he had done so I think he was entitled to conclude that the claims of his other daughter and her family, and his desire to fulfil his promises to assist them, outweighed any claim on the part of the claimant, I do not think that by making no provision for the claimant he was acting unreasonably. Accordingly the claim is dismissed.