- Brian SloanBrian SloanCollege Lecturer in Law, Robinson College, University of Cambridge
This chapter addresses family provision, with particular reference to the Supreme Court’s decision in Ilott v The Blue Cross. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain persons can apply for financial provision out of the deceased’s estate on the grounds that the deceased’s will or intestacy (or a combination of the two) does not make reasonable financial provision for the applicant. The persons entitled to apply are the deceased’s surviving spouse or civil partner, former spouses or civil partners who have not remarried or entered a subsequent civil partnership, children, children of the family, dependants, and cohabitants. The remainder of the chapter covers the powers of court to make orders; the ‘standards’ applicable to applicants and the ‘matters’ which the court must take into account in applications for an order under the 1975 Act; and anti-avoidance provisions of the 1975 Act.
It was seen in the introduction to the book (at 1.2.1) that the balance between testamentary freedom and provision for family members is a fundamentally important matter of principle. Moreover, the issue is of considerable practical importance. The fact that the law of England and Wales provides a discretionary system under the Inheritance (Provision for Family and Dependants) Act 1975, whereby testators’ wills (or the application of the intestacy rules) can be adjusted, is potentially conducive to litigation. But the importance of the 1975 Act cannot be measured alone by the amount of litigation thereby generated (which has actually not been as great as was feared). For the mere possibility of an application being made under the Act must be a vital negotiating factor in numerous disputes which never reach court. The 1975 Act receives detailed treatment in two outstanding monographs: S. Ross, Inheritance Act Claims, 4th edn (2017) and R.D. Oughton (ed), Tyler’s Family Provision, 3rd edn (1997), albeit that the latter is ageing somewhat.
This chapter is heavily influenced by the recent decision of the Supreme Court in Ilott v The Blue Cross  UKSC 17 (concerning a claim by an adult daughter, which was successful but had its quantum reduced by that court), which was the first one concerning the Act to reach the Supreme Court or its predecessor, the House of Lords. While Lord Hughes was anxious that ‘there is no occasion for this court to attempt to meet every difficulty to which claims for family provision may give rise’ (para. 3), he admitted that ‘[s]ome of the factors inevitably dealt with in [the Supreme Court’s] judgment may apply also to types of case other than those of adult children living separately from the deceased’. On Lady’s Hale’s analysis, moreover, the case raised ‘some profound questions about the nature of family obligations, the relationship between family obligations and the state, and the relationship between the freedom of property owners to dispose of their property as they see fit and their duty to fulfil their family obligations’ (para. 49).
9.1.1 The basic position
Under the 1975 Act, certain persons can apply for financial provision out of the deceased’s estate on the grounds that the deceased’s will or intestacy (or a combination of the two) does not make reasonable financial provision for the applicant. The persons entitled to apply are the deceased’s surviving spouse or civil partner, former spouses or civil partners who have not remarried or entered a subsequent civil partnership, children, children of the family, dependants, and cohabitants: s. 1(1). p. 288↵As a general rule, the surviving spouse/civil partner can apply for ‘such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife [or civil partner] to receive’, whereas the other applicants apply for ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’: s. 1(2).
Applications (see 9.2) must normally be made within six months from the date on which ‘representation with respect to the estate of the deceased is first taken out’: s. 4. The application essentially proceeds in two stages once the applicant has established eligibility. First, the court must consider whether reasonable financial provision has been made for the applicant. Secondly, if no such provision has been made, the court will determine whether (and in what manner) to exercise its powers (see Figure 9.1).
The court has a wide range of orders that it can make, including lump sum and periodical payments orders: s. 2 (see 9.3). The court must take a variety of factors into account at both stages of the application (see 9.4), including the financial resources and needs of the applicants and any beneficiaries of the deceased’s estate: s. 3. Although the court must take such factors into account, the exercise of its powers under s. 2 will essentially be a matter for the court’s discretion—there are no fixed rights of inheritance in English law.
The 1975 Act contains important measures aimed at preventing evasion of the Act (see 9.5). Dispositions made by the deceased less than six years before his death may be subject to the court’s order if they were made ‘with the intention of defeating an application for financial provision under this Act’: s. 10. Moreover, the court may make an order in respect of any contract made by the deceased to leave a gift by will or pay or transfer money or other property out of his estate, if the contract was made with the intention of defeating applications under the Act: s. 11.
It has been seen in earlier chapters that testamentary freedom was severely limited for much of English legal history. The Anglo-Saxon will was rather like the earliest form of Roman will—an exceptional departure from the norms of succession. Throughout much of the medieval period land could not be disposed of by will. Even after 1540—when the Statute of Wills allowed landowners to devise certain types of realty—there were important restrictions. For example, the right of dower gave the wife a life interest in one third of her husband’s freeholds. As for personalty, it will be remembered that the basic position in early English law was that the spouse and children had a fixed entitlement in the deceased’s estate, so that the testator could freely dispose only of the remainder. These fixed rights of inheritance gradually ceased to be enforced, but survived in some parts of the country until the eighteenth century. It was only in the century or so after the Dower Act 1833 that testators were substantially unrestricted.
In the 1920s there was considerable pressure for reform of the law to enable maintenance to be sought from a testator’s estate. The precedent was cited of the Testators Family Maintenance Act 1900 (New Zealand), which enabled a testator’s spouse and children to apply for provision on the ground that the will did not provide for the ‘proper maintenance’ of the applicant. But reform was frustrated, mainly through the opposition of the legal establishment, until the Inheritance (Family Provision) Act 1938, which enacted in effect the New Zealand model. The Act allowed applications to be made for provision by periodical payments or lump sums from the testator’s estate on the ground that the will did not make reasonable provision for the maintenance of the applicant. The amount of provision that could be ordered by way of periodical payments was limited to a maximum of two thirds of the annual income of the net estate, and there were restrictions on the maximum that could be ordered by lump sum. The category of applicants was confined to spouses, unmarried daughters, infant sons (under 21), and children incapable of maintaining themselves by reason of disability. Objectors to the Act predicted that it would open the floodgates to litigation, but the predictions proved unfounded. The 1938 Act was extended to intestacy by the Intestates’ Estates Act 1952 and the category of applicants was widened by the Matrimonial Causes (Property and Maintenance) Act 1958 to include former spouses who had not re-married. The Family Provision Act 1966 removed the restrictions on the quantum of the provision that could be ordered and extended jurisdiction to the county courts (previously confined to the High Court).
The current legislation—the Inheritance (Provision for Family and Dependants) Act 1975—was enacted following the recommendations made by the Law Commission in the Second Report on Family Property (Law Com. No. 61, 1974). The scope of the previous legislation was considerably extended. There were four main reforms. First, the surviving spouse was no longer confined to applying for maintenance but could now apply for such provision ‘as it would be reasonable in all the circumstances of the case for a husband or wife to receive’: s. 1(2)(a). Secondly, the categories of applicant were significantly widened to include persons not related to the deceased—namely, children of the family (persons treated by the deceased as his children) and dependants: s. 1(1)(d) and (e). Thirdly, the powers of the court were considerably extended as to p. 290↵the range of orders that it could make: s. 2. Fourthly, measures were enacted to restrict the deceased from evading the Act: ss. 10–12. More recently, the class of applicants was further extended to include cohabitants (Law Reform (Succession) Act 1995, s. 2(2)) and civil partners (Civil Partnership Act 2004, sch. 4, para. 15). Further changes were made by the Inheritance and Trustees’ Powers Act 2014 (see, generally, R. Probert, ‘Disquieting Thoughts: Who will Benefit when we are Gone?’ in B. Häcker and C. Mitchell (eds), Current Issues in Succession Law (2016)), following the Law Commission’s report Intestacy and Family Provision Claims on Death (Law Com. No. 331, 2011) and the preceding Consultation Paper 191 (2009).
9.2 Applying under the 1975 Act
The 1975 Act applies if the deceased died on or after 1 April 1976 domiciled in England and Wales: s. 1(1). The Act does not apply in the case of persons dying domiciled in Scotland or Northern Ireland: Scotland has a fixed rights system, while Northern Ireland has adopted a discretionary system modelled on English legislation. Domicile can be described as the legal concept which identifies the legal system of the territory with which a person has the closest connection. There are three types of domicile—domicile of origin, of choice, and of dependency—but as a rough guide it can be said that a person is generally regarded as domiciled where he has his permanent home. The onus is on the applicant to show that the deceased died domiciled in England and Wales: Mastaka v Midland Bank  Ch 192 (see also Bheekhun v Williams  2 FLR 229, CA, where the deceased was held to have acquired domicile in England despite his extensive business and property interests in Mauritius). There has been some criticism of the rule that jurisdiction is determined by the deceased’s domicile, and the Law Commission eventually recommended that an application should also be possible where English succession law applied to any part of the estate (Law Com. No. 331, 2011, para. 7.37), but the change did not appear in the Inheritance and Trustees’ Powers Act 2014 passed by Parliament. It should be noted that the applicant’s domicile is not relevant to applying under the Act (Witkowska v Kaminski  EWHC 1940 (Ch)).
If an application is made but is then settled by a consent order—an order of the court approving a compromise between the parties—the court is unlikely to allow the case to be reopened: Tibbs v Dick  2 FLR 1118, CA.
9.2.1 Who can apply?
There are now six categories of applicant under the 1975 Act (if spouses and civil partners are grouped together). Section 1(1), as originally enacted, contained the following five categories:
the wife or husband of the deceased;
a former wife or former husband of the deceased who has not remarried;
a child of the deceased;
any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
In addition, s. 2 of the Law Reform (Succession) Act 1995 has inserted into s. 1(1) of the 1975 Act a new category—any person, other than a spouse or former spouse, who was living in the same household as the deceased, and as the husband or wife of the deceased, during the whole of the period of two years ending immediately before the date when the deceased died: s. 1(1)(ba). This category applies where the deceased died on or after 1 January 1996. Unsurprisingly, s. 1(1)(a)–(b) now contains references to civil partnership. The Inheritance and Trustees’ Powers 2014, sch. 2, para. 2 expanded s. 1(1)(d) and inserted s. 1(2A) so that a ‘child of the family’ need not be related to a relationship between the deceased and a third party.
220.127.116.11 Spouse or civil partner of the deceased
The onus is on the applicant to prove that he or she was the deceased’s spouse or civil partner when the deceased died: Re Peete  2 All ER 599. In that case the applicant failed to establish locus standi since she could not prove that she was the widow of the testator, her second husband. There was insufficient evidence that her first husband had died when she married the testator. An applicant falls within s. 1(1)(a) if, despite a decree nisi being granted in divorce proceedings, the decree absolute had not yet been pronounced when the deceased died: Bheekhun v Williams  2 FLR 229, CA. A party to a void marriage can apply within this category if that party entered into the marriage with the deceased in good faith, unless during the deceased’s lifetime either (i) the marriage was dissolved or annulled, or (ii) that party entered into a later marriage: s. 25(4). The same principles apply to void civil partnerships: s. 25(4A). A party to a voidable marriage can apply within this category if the marriage had not been dissolved or annulled before the deceased’s death. A party to a polygamous marriage is a spouse for the purposes of s. 1(1)(a): Re Sehota  1 WLR 1506, where the first wife of the deceased applied for provision out of his estate. He had left it all to his second wife, who opposed the application. It was held that the applicant (who was still married to the deceased when he died) was a ‘wife’ within s. 1(1)(a). Thus there may be simultaneous applications from concurrent spouses—had Mr Sehota left all his property to charity, say, both wives could have applied. A spouse who was judicially separated from the deceased can apply within this category unless barred from doing so by s. 15 (see 18.104.22.168).
There were some indications in early cases following the 1938 Act that wives’ applications might be more sympathetically considered than those of husbands, but this is no longer the case. Even as long ago as Re Clayton  1 WLR 969, it was held that the onus on a husband in seeking provision was no greater than that on a wife.
22.214.171.124 Former spouse or civil partner of the deceased
Under s. 1(1)(b) of the 1975 Act, a former spouse or civil partner may apply if he or she has not remarried or entered a subsequent civil partnership. Section 25(1) defines a former spouse as a person whose marriage with the deceased was p. 292↵during the deceased’s lifetime dissolved or annulled either by (i) a decree of divorce or nullity granted under the law of any part of the British Islands, or (ii) a divorce or annulment (outside the British Islands) recognized as valid by the law of England and Wales. It defines a former civil partnership similarly, although the terminology of ‘dissolution’ rather than divorce is used. A former spouse or civil partner who has remarried or entered a subsequent civil partnership does not qualify under s. 1(1)(b). For this purpose remarriage includes a marriage which is void or voidable: s. 25(5). Section 25(5A) applies the same principle to civil partnerships.
In the vast majority of divorces, dissolution, or annulments a financial settlement will have been agreed or imposed following the termination of the marriage. Often the parties feel that when they die they would not wish their ex-spouse/civil partner to claim provision out of their estate. Accordingly, the court has the power—on the application of either party—to order that the other party should be disentitled from seeking an order under the 1975 Act following the death of the applicant: s. 15(1). The court can make the order—‘if it considers it just to do so’— on the grant of a decree of divorce, nullity, or judicial separation or ‘at any time thereafter’ (with s. 15ZA containing equivalent provision for dissolution of a civil partnership). However, the potential usefulness of s. 15(1) is questionable following the interpretation given to the phrase ‘if it considers it just to do so’ in Whiting v Whiting  2 All ER 275, CA. It was held that an application under s. 15(1) was unlikely to succeed without some evidence as to what the applicant’s estate was likely to consist of and details of the persons whom the applicant considered to have a prior claim to the former spouse. The basis of the decision—that the court cannot decide what is ‘just’ without the relevant information—is readily understandable, but the effect is to restrict significantly the potential scope of s. 15(1). There is a case for omitting the phrase ‘if it considers it just to do so’ if the scope of s. 15(1) would thereby be widened.
Despite these doubts about the scope of s. 15, it was emphasized in Cameron v Treasury Solicitor  2 FLR 716, CA, that it was the practice to include a s. 15 restriction in clean break orders on the termination of marriage. However, the fact that such a restriction was not included could not be regarded as improving the chances of a former spouse applying successfully.
126.96.36.199 Child of the deceased
A child of the deceased can apply under s. 1(1)(c). A ‘child’ includes an ‘illegitimate’ child or a child conceived at the deceased’s death: s. 25(1). It also includes any child adopted by the deceased: Adoption and Children Act 2002, s. 67. However, if a child of the deceased is adopted by a third party after the deceased’s death, but before an application for provision is made by the child under the 1975 Act, the application must fail since the child is no longer ‘a child of the deceased’: Re Collins  Fam 56. A stepchild is not ‘a child of the deceased’ but may be a child of the family (see 188.8.131.52).
The age and marital status of a child are irrelevant to whether the child can apply under s. 1(1)(c). The original confinement of this category to infant sons and unmarried daughters was repealed by the 1975 Act. Regarding age, Booth J commented thus in Re Callaghan  Fam 1, at 5:
p. 293↵‘Child’, for the purposes of s. 1, clearly includes an adult child. One of the persons who may apply by virtue of s. 1(1)(c) is ‘a child of the deceased’, and it cannot be suggested that in that context ‘child’ must be limited to a minor or dependent child. In s. 1(1)(c) ‘child’ relates to the relationship between the deceased and the applicant.
184.108.40.206 Child of the family
Under s. 1(1)(d) any person (not being a child of the deceased) may apply who was treated by the deceased as a child of the family. Previously, it was required that this treatment occurred in relation to any marriage (or later a civil partnership) to which the deceased was at any time a party. This condition was expanded by the Inheritance and Trustees’ Powers Act 2014, sch. 2, para 2 for deaths on or after 1 October 2014, to include those treated as a child of the family ‘otherwise in relation to any family in which the deceased at any time stood in the role of a parent’. Section 1(2A) of the 1975 Act confirms that the new concept of family for these purposes ‘includes a family of which the deceased was the only member (apart from the applicant)’. The result is that being a stepchild of the deceased is now neither a necessary nor a sufficient condition: the test is whether the applicant was treated by the deceased as a child of the family (there may be stepchildren who are not treated thus). As in the case of children, applicants under s. 1(1)(d) can be of adult age: Re Callaghan  Fam 1.
The concept of treating a person as a child of the family is derived from matrimonial law. It seems that there must be evidence of some behaviour of a parental nature by the deceased towards the applicant. In Re Callaghan  Fam 1, the applicant was a married man aged 47 with a family of his own. He applied for provision out of the estate of his stepfather, who had died intestate. The deceased had lived for many years with the applicant’s mother before eventually marrying her. Throughout all this time—before and after the marriage—the deceased treated the applicant as his own son. The applicant’s children regarded the deceased as their grandfather. During the deceased’s last illness the applicant and his wife looked after him. It was held that the applicant had clearly been treated by the deceased as a child of the family. He was awarded a lump sum of £15,000 (out of an estate worth about £31,000). On the issue of treatment Booth J stated (at 6):
In this case the acknowledgment by the deceased of his own role of grandfather to the plaintiff’s children, the confidences as to his property and financial affairs which he placed in the plaintiff and his dependence on the plaintiff to care for him in his last illness are examples of the deceased’s treatment of the plaintiff as a child, albeit an adult child, of the family. All these things are part of the privileges and duties of two persons who, in regard to each other, stand in the relationship of parent and child; it is the existence of that relationship that enables the plaintiff to apply under s. 1(1)(d) of the Act.
In Re Leach  Ch 226, CA, the applicant (aged 55) applied for provision out of her stepmother’s intestate estate. The applicant never lived with the stepmother and the evidence suggested that the latter’s treatment of the applicant p. 294↵as a child of the family had occurred partly after the applicant’s father had died. It was argued that such treatment was irrelevant since s. 1(1)(d) then required that the treatment be in relation to a marriage to which the deceased was a party (whereas the treatment occurred after the marriage’s termination). It was held that the phrase ‘in relation to that marriage’ in s. 1(1)(d) did not mean ‘during the subsistence of that marriage’. Hence the treatment of the applicant by the deceased after the death of the other spouse was relevant. The applicant was eligible to apply on the basis that the deceased had expressly or impliedly assumed the position of a parent towards the applicant, with the attendant responsibilities and privileges of that relationship. But mere displays of affection, kindness, or hospitality towards the applicant were in themselves insufficient. However, provided that the appropriate treatment had occurred, it was not necessary that it should have continued up to the deceased’s death. The applicant was awarded £19,000 out of the net estate (valued at about £34,000). It should be noted that in both Re Leach and Re Callaghan the court regarded it as significant that the deceased’s estate was largely derived from the other spouse (i.e., the parent of the applicant).
It might be thought that the removal of the requirement that the applicant’s treatment has to be in a relation to a marriage or civil partnership could significantly expand the scope of the ‘child of the family’ category. When proposing the change, however, the Law Commission (Law Com. 331, 2011, para. 6.38) emphasized that, for example, ‘simply helping an elderly neighbour, without much more’ would not justify a conclusion that the helper was being treated as a child of the family by the neighbour.
220.127.116.11 Dependant of the deceased
Under s. 1(1)(e), an application may be brought by any person ‘who immediately before the death of the deceased was being maintained either wholly or partly by the deceased’. This category was introduced by the 1975 Act and was regarded as the most controversial reform in that Act (for comment see especially S. Naresh, ‘Dependants’ Applications under the Inheritance (Provision for Family and Dependants) Act 1975’ (1980) 96 LQR 534; K. Green, ‘The Englishwoman’s Castle— Inheritance and Private Property Today’ (1988) 51 MLR 187). Some feared that, by including persons who might be outside the deceased’s family, the floodgates to litigation would be opened, and that the benefit that the deceased’s family would receive under a will or intestacy would diminish. As is often the case, the fears proved exaggerated. Indeed, the first important reported case concerned two elderly sisters living together: Re Wilkinson  1 All ER 221. The case illustrated inter alia that s. 1(1)(e) could apply to family members (other than those falling within the other categories in s. 1(1)). The rationale of s. 1(1)(e) was that the maintenance of a person by the deceased during the latter’s lifetime could result in an obligation that the maintenance be continued after the deceased’s death. This approach, it will be remembered, reflects one of the major arguments for restricting testamentary freedom.
To qualify under s. 1(1)(e) it must be shown that (i) the applicant was being maintained (wholly or partly) by the deceased, and (ii) that this was being done immediately before the death of the deceased. The definition of the first of these elements was reformed by the Inheritance and Trustees’ Powers Act 2014.
a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature.
While the pre-2014 s. 1(3), which did not contain the word ‘only’, could have been interpreted as imposing merely a sufficient condition for the purposes of s. 1(1)(e), s. 1(3) was nevertheless regarded as an essential requirement in Re Beaumont  Ch 444, and certainly is now. The contribution must be in money or ‘money’s worth’. This phrase obviously covers things that can be valued in money, for example, accommodation. The contribution must have been towards ‘the reasonable needs’ of that person. It seems that there is no universal objective standard applicable to decide this question. Reasonable needs will vary from person to person, and the court is likely to take into account what the applicant has been accustomed to (as occurs in maintenance awards in matrimonial proceedings). Maintenance is seemingly understood as a continuing concept. The result of this is that a ‘one-off outright gift’ made years before the death cannot constitute relevant maintenance (Baynes v Hedger  EWHC 1587 (Ch) para. 154) and the payment of past debts cannot do so either unless that facilitated future income or represented living expenses since the death (Baynes v Hedger  EWCA Civ 374, para. 45).
The contribution must have been ‘substantial’; whether it was depends on what were the reasonable needs of the applicant. In Re Viner  CLY 3091, the deceased had paid £5 a week for six months before his death to the applicant, an elderly widowed sister living in very poor financial circumstances. The deceased had left most of his estate (worth about £44,000) to a woman who had been his partner in his private company. It was held that the applicant had been maintained by the deceased—he had made a substantial contribution to her reasonable needs. She was awarded a lump sum of £2,000. It seems that it is the actual contribution made by the deceased that must be substantial, not the difference between that contribution and any consideration received by the deceased from the applicant. That was the view taken in Re Wilkinson but there are contrary dicta to be found in Jelley v Iliffe  Fam 128, CA and Bishop v Plumley  1 WLR 582, CA. The view expressed in Re Wilkinson is to be preferred: it accords better with the natural meaning of the words in s. 1(3). Whether the deceased made a substantial contribution is the first hurdle that the applicant must cross; the issue of full valuable consideration is a later, and separate, issue (see S. Ross, ‘Inheritance Act Claims by Dependants’  Family Law 490, who takes this view).
Under the original s. 1(3) the contribution had to be made ‘otherwise than for full valuable consideration’ in all cases, whether or not pursuant to an arrangement of a commercial nature. Marriage or a promise of marriage does not constitute ‘valuable consideration’: s. 25(1). The purpose of excluding applicants who were maintained in return for full valuable consideration was presumably to restrict the s. 1(1)(e) category to those who can show dependency on the deceased. p. 296↵It is curious therefore that the word ‘dependant’ is not used in s. 1(1)(e) although the category is clearly concerned with dependants (and the word appears in the Act’s title). A readily understandable illustration of the lack of valuable consideration is provided by Rees v Newbery  1 FLR 1041: the deceased had befriended the applicant while they were working as actors at the Royal Opera House, Covent Garden. In 1984 the deceased let a flat in his house to the applicant under a tenancy agreement in which the rent was stipulated to be well below the market rate. In 1993 the deceased decided to make a will in which inter alia he intended that the applicant should be allowed to remain in the flat for life at the same rent (adjusted for inflation). However, the deceased died before the will could be executed. It was held that the applicant had been maintained by the deceased within s. 1(3) since the applicant’s rent payments could not be regarded as full valuable consideration. The fact that the maintenance arose through a tenancy agreement did not preclude an application, particularly as the relationship between the deceased and the applicant was one of close friendship rather than landlord and tenant. The applicant was awarded a lump sum of £64,000 calculated by reference to the value to him of the right to occupy the flat for life at the reduced rent (it was impracticable to allow the applicant to remain in the flat as intended by the deceased).
In Re B  Ch 662, CA, also known as Bouette v Rose, the applicant’s daughter suffered brain damage at birth due to medical negligence for which she was awarded £250,000 in damages. The daughter’s father left her and the applicant shortly afterwards. The daughter’s financial affairs were placed under the Court of Protection and a property was purchased for the joint use of the applicant and her daughter. The applicant also received regular payments from the Court of Protection for the daughter’s maintenance (she acted as her full-time carer). The daughter eventually died aged 14 (and thus intestate). The applicant objected to the father taking half of the daughter’s estate on intestacy. Her application was allowed by the Court of Appeal (reversing the first instance decision). The deceased had made a substantial contribution—through the Court of Protection—to the applicant’s reasonable needs. Although this was an application in highly unusual circumstances, the decision was surely justified on the merits of the case.
The need for an applicant to show dependency on the deceased, and thus not to give full valuable consideration, sometimes involved the court in the potentially difficult task of having to weigh the respective contributions of the applicant and the deceased. Suppose, for example, that Arthur was a sick, elderly widower who invited his sister, Ethel, to come and live with him so that she could act as his nurse and companion. Ethel did so, receiving free accommodation. Arthur was undoubtedly maintaining her within s. 1(3), but was Ethel providing ‘full valuable consideration’ for the purposes of the original s. 1(3)? If she was, she could not apply under the pre-2014 s. 1(1)(e). The paradox was that the more that the applicant contributed, the less likelihood there was of the applicant satisfying s. 1(1)(e): see, for example, B. Sloan, Informal Carers and Private Law (2013) 152–61. In Re Wilkinson the applicant went to live with the deceased, her sister, who was suffering from severe arthritis. The applicant received free board and accommodation. She looked after the deceased and acted as her companion virtually on a full-time basis. They shared the light housework and cooking. It was held that since the services provided by the applicant did not amount to full valuable consideration, she fell within s. 1(1)(e). The issue was raised whether the full valuable p. 297↵consideration must arise under a contract. Arnold J held that the applicant’s services had to be valued whether they were contracted or not. Perhaps he was reluctant to confine ‘full valuable consideration’ to contractual services because to do so would have widened the potential scope of s. 1(1)(e) in the first test case concerning this category.
The approach in Re Wilkinson was followed in subsequent decisions, although the difficulties in evaluating the contributions of the parties were clearly recognized by the courts. For example, in Jelley v Iliffe, Griffiths LJ stated (at 141):
the object of Parliament in creating this extra class of persons who may claim benefit from an estate was to provide relief for persons of whom it could truly be said that they were wholly or partially dependent on the deceased. It cannot be an exact exercise of evaluating services in pounds and pence. By way of example, if a man was living with a woman as his wife and providing the house and all the money for their living expenses she would clearly be dependent on him, and it would not be right to deprive her of her claim by arguing that she was in fact performing the services that a housekeeper would perform and it would cost more to employ a housekeeper than was spent on her and indeed perhaps more than the deceased had available to spend on her. Each case will have to be looked at carefully on its own facts to see whether common sense leads to the conclusion that the applicant can fairly be regarded as a dependant.
In Bishop v Plumley the applicant and deceased cohabited as man and wife (though both were married to other people) for about ten years. They pooled their resources and for most of the period lived in a cottage rented from Oxford University. But in the ten months prior to his death they lived in the deceased’s house, which he had bought with the proceeds of an inheritance. During the last three years of his life he suffered from angina and received exceptionally devoted care from the applicant. In his will (made ten years before his death) the deceased left all his property to his two children by his marriage. It was held at first instance that the benefits given by the applicant to the deceased as he became more ill equalled those received by the applicant (free accommodation for the last ten months of the deceased’s life). Therefore the application had to fail since the applicant had given full valuable consideration. The Court of Appeal reversed the decision, holding that the provision of a secure home for the applicant for ten months was a substantial contribution which was not equalled by the applicant’s exceptional care of the deceased. Butler-Sloss LJ stated (at 242):
Counsel for the beneficiaries [the deceased’s children] argues that on her own evidence the applicant gave services which were out of the ordinary, and by this exceptional care she was giving him full valuable consideration. I do not consider that her evidence that she did everything for him over a period of years can be assessed in isolation from the mutuality of the relationship. If a man or a woman living as man and wife with a partner gives the other extra devoted care and attention, particularly when the partner is in poor health, is he or she to be in a less advantageous position on an application under the Act than one who may be less loving and give less attention to the partner? I do not accept that this could have been the intention of Parliament in passing this legislation.
p. 298↵Bishop v Plumley was a most welcome decision. By excluding from the evaluation process things done by the applicant arising from ‘the mutuality of the relationship’—or diminishing their significance—the decision appeared to avoid the problems arising from Re Wilkinson. In effect Bishop v Plumley interpreted ‘full valuable consideration’ in s. 1(3) more narrowly than Re Wilkinson, thus enabling a potentially greater number of persons to qualify under s. 1(1)(e), as for example the applicant mother in Re B: her devoted full-time care might well have amounted to full valuable consideration, before Bishop v Plumley was decided, and thus have thwarted her application (but see Jennings v Rice  WTLR 871 for a case going the other way).
Despite the largely sympathetic approach of the courts, the Law Commission recognized the difficulties with what they called the ‘balance sheet test’ (Law Com. No. 331, 2011, para. 6.75). The Inheritance and Trustees’ Powers Act 2014 therefore limited the application of the ‘full valuable consideration’ test to such consideration ‘pursuant to an arrangement of a commercial nature’. This change is welcome (and Ethel in the example above could now apply), but could still raise difficult issues of interpretation as to whether an arrangement is ‘commercial’ or not.
(b) ‘Immediately before’ the deceased’s death. The cases show that ‘immediately before’ must not be construed literally. In Re Beaumont, at 452, Megarry VC suggested a broad, common-sense approach. The ‘gaze of the court’ was not to be confined to whatever was the state of maintenance existing at the precise moment immediately before the deceased’s death:
If at the moment before the death of the deceased there is some settled basis or arrangement between the parties as regards maintenance, then I think that s. 1 should be applied to this rather than to any de facto variation in the actual maintenance that may happen to exist at that moment.
This approach was subsequently confirmed by the Court of Appeal in Jelley v Iliffe and has been consistently followed. In Gully v Dix  EWCA Civ 139, the claimant had been cohabiting with the deceased for some twenty-seven years. The deceased’s alcoholism caused several short separations between the parties. A final separation occurred when the deceased threatened to kill himself in front of the applicant using a knife. The applicant left and went to stay with her daughter. The deceased left telephone messages with the daughter begging the applicant to return. These were not passed on to the applicant and she did not return to live with the deceased, who was found dead three months after the applicant had left their home. The Court of Appeal upheld the judge’s conclusion that the three-month separation did not represent the settled state of affairs and that the applicant could bring herself within s. 1(1)(e). It is clear, however, that if there is no evidence of a settled pattern of dependence immediately before the deceased’s death, the application cannot proceed. In Kourkgy v Lusher (1983) 4 FLR 65, the applicant had been the deceased’s mistress for over ten years. They cohabited intermittently and bought property to which the deceased contributed. The deceased throughout this time remained in contact with his wife (they ran a chiropody practice) and returned to the matrimonial home on a regular basis. Shortly before his death he went on holiday with his wife, telling her that he was returning to her p. 299↵permanently. On returning from holiday he resumed cohabitation with his wife but died soon afterwards. It was held that the deceased’s failure to resume cohabitation with the applicant, coupled with the indications that he was not going back to her, meant that he was not maintaining her ‘immediately before’ his death.
(c) Assumption of responsibility for maintenance. Is there anything else that an applicant must prove—besides being maintained by the deceased immediately before the deceased’s death—in order to qualify under s. 1(1)(e)? Megarry VC emphasized in Re Beaumont the relevance of s. 3(4), which then provided that where an application is made under s. 1(1)(e) the court shall have regard to ‘the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant’. The judge concluded that this meant that an applicant could not proceed under s. 1(1)(e) unless it could be shown that the deceased had assumed maintenance for the applicant (the mere fact of maintenance was insufficient). This was an unfortunate decision which seriously restricted the operation of the s. 1(1)(e) category, but the Court of Appeal in Jelley v Iliffe qualified Re Beaumont on this point, holding that it could be presumed from the fact that the deceased was maintaining the applicant that the deceased had assumed responsibility for maintaining him. The facts of Jelley v Iliffe were similar to those of Re Beaumont—cohabitation by a couple as man and wife in the deceased’s home, with pooling of resources and sharing of expenses. It was held that the applicant could proceed under s. 1(1)(e) since it could be presumed that the deceased had assumed responsibility for his maintenance. Jelley v Iliffe was applied in Rees v Newbery and Re B: in both cases the court presumed assumption of responsibility for the applicant’s maintenance from the very fact of maintenance. That said, a finding of no assumption remained possible: in Baynes v Hedger, the Court of Appeal held that, since the judge had found that the deceased had not assumed responsibility for the applicant, he should have dismissed the application at that stage.
The Law Commission recommended the removal of the assumption of responsibility as a threshold condition, which they say should ‘never have become part of the qualifying requirements’ (Consultation Paper 191, para. 6.17). The Commission recommended that instead ‘the question of whether or not there was such an assumption of responsibility, and its extent, should be taken into account [only] as a factor in assessing whether there was a failure to make reasonable provision for the applicant and considering the exercise of the court’s powers’ (Law Com. No. 331, para. 6.59). Section 3(4) was amended accordingly by the Inheritance and Trustees’ Powers Act 2014 (see 18.104.22.168), although this does not amount to a prohibition on considering the assumption of responsibility when determining eligibility.
22.214.171.124 Cohabitant of the deceased
If the deceased died on or after 1 January 1996, a person may apply for provision if he or she lived in the same household as the deceased, and as their husband or wife, during the whole of the period of two years ending immediately before the date when the deceased died: s. 1(1)(ba), referring to a definition in s. 1(1A). This category was enacted by s. 2 of the Law Reform (Succession) Act 1995 following the recommendations of the Law Commission’s Report, Distribution on Intestacy (Law Com. No. 187, 1989). This reform—enabling cohabitants to apply even though unable to show the dependence on the deceased required under s. 1(1)(e)—was an important step in the increasing recognition of cohabitants’ rights. The scope of s. 1(1)p. 300↵(ba) was extended to include couples living as civil partners 1(1B) has been repealed after the date in the preface. While there is no change of substance, it may be easiest just to delete as shown since the reference to civil partnership is now in 1(1A).
Cohabitants are defined by the same formula as used in the Fatal Accidents Act 1976 for loss suffered as the result of death. Under s. 1(1)(ba), the applicant must satisfy three requirements: that he or she was living (i) in the same household as the deceased, (ii) as the husband, wife, or civil partner of the deceased (notwithstanding the fact that their relationship was not in fact so formalized), and (iii) that such living occurred during the whole of the period of two years immediately before the deceased’s death.
When considering what it meant to live in the same household, Judge Norris QC said in Churchill v Roach  EWHC 3230 (Ch);  2 FLR 989, at 1004:
It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes, and to involve an element of community of resources.
It is not necessary for the applicant and the deceased to have lived in the same physical property, and it was the presence of ‘two separate establishments with two separate domestic economies’ that was fatal to the s. 1(1)(ba) claim in Churchill (at 1005). Churchill demonstrates that a case may be advanced under two categories, however, since the claimant was successful under s. 1(1)(e).
It was confirmed in Gully v Dix that the same approach would be taken to the ‘immediately before’ requirements as to the same phrase in s. 1(1)(e), notwithstanding the additional two-year requirement under s. 1(1)(ba). It is therefore the settled state of affairs that is relevant, such that a stay in hospital (Re Watson  1 FLR 878) or a temporary separation will not thwart the claim.
The requirement that the applicant should have been living ‘as the husband or wife of the deceased’ was considered in Re Watson. A couple who had known each other for many years (their relationship had included sexual intimacy) started living together in their mid-fifties and continued to do so until the deceased’s death some eleven years later. They lived companionably together without sexual relations, not sharing a bedroom. As the deceased died intestate without surviving relations, his estate would have passed to the Crown as bona vacantia subject to the applicant’s claim (which proved to be partially successful). It was held that the absence of sexual relations did not preclude the court from finding that the couple had lived together as husband and wife. Neuberger J thought it was not unusual for a happily married couple in their mid-fifties to have separate bedrooms and to abstain from sexual relations. The judge stated the relevant test to be as follows (at 883):
the court should ask itself whether, in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife; but, when considering that question, one should not ignore the multifarious nature of marital relationships.
p. 301↵In Baynes v Hedger  EWHC 1587 (Ch), para. 150, however, although he had already decided that the deceased and her putative same-sex cohabitant did not share a household in any event, Lewison J also concluded that it was ‘not possible to establish that two persons have lived together as civil partners unless their relationship as a couple is an acknowledged one’. He therefore decided that the two elderly women had not lived together as such because their relationship as a couple was not openly acknowledged. This is unsurprising since, for example, their fifty-year loving relationship began at a time when private and consensual sexual activity between two males remained a criminal offence (cf. Sexual Offences Act 1967), even if sexual activities between women were never criminalized. Lewison J drew his conclusion in spite of Neuberger J’s opinion, expressed in Re Watson, to the effect that both ‘internal’ and ‘external’ elements are relevant when considering the nature of the relationship and, if anything, internal elements are more important (see B. Sloan, ‘The Concept of Coupledom in Succession Law’  CLJ 623 for further discussion).
126.96.36.199 Close relations or carers of the deceased?
Should the 1975 Act be extended to other categories of applicant? The obvious candidates are the close relations of the deceased such as parents and siblings, and informal carers. While Australian jurisdictions allow claims from a wide range of people connected with the deceased (see, e.g., Sloan, Informal Carers and Private Law, 151–2), under the current law in England and Wales many such people have no locus standi under the 1975 Act unless they were dependants of the deceased within s. 1(1)(e). Would it be restricting testamentary freedom unacceptably to allow such relations to apply? Consider this plausible scenario. Arthur makes a will leaving all his considerable estate to a charity. He is survived by only one relation, Edith, his sister, who is in impoverished financial circumstances. They were close but he had not maintained her prior to his death. Under the current law Edith cannot apply under the 1975 Act. It may be that Arthur had very good reasons for not leaving Edith anything in his will. If so, this may make all the difference. But should not the matter at least be capable of being tested in court rather than there being a blanket exclusion of such cases, as occurs now? A case can certainly be made out for extending the Act to parents, siblings, and carers in appropriate circumstances, even if some might fear excessive litigation.
188.8.131.52 Right to apply is a personal right
Whatever the category of applicant, the court can make an order only if the applicant is alive. In Whyte v Ticehurst  Fam 64, the testator devised his home to a charity subject to the wife’s right to remain there during her lifetime. After his death she applied under the 1975 Act but died before any order was made. It was held that since the right to apply under s. 1(1)(a) was personal to the surviving spouse, her personal representatives could not carry on her action for the benefit of her estate. The same principle was applied in Roberts v Fresco  EWHC 283 (Ch).
9.2.2 Which courts have jurisdiction?
Applications under the 1975 Act can be made either to the High Court or to the County Court. As regards the High Court, both the Family Division and the Chancery Division have jurisdiction. The 1975 Act does not indicate which Division p. 302↵is appropriate in any particular case—the choice is the applicant’s. Nevertheless, there may be certain aspects to an application which would make one Division more suitable than another. For example, if an order has been granted in former matrimonial proceedings involving the deceased, the Family Division may be the more appropriate forum. But the Chancery Division would be more convenient if the application raises difficult questions of interpretation of a will or administration of the deceased’s estate.
Under the County Courts Act 1984 the county court has unlimited financial jurisdiction. It may thus be tempting always to commence proceedings in the county court—because of lower costs. By virtue of Article 4A of the High Court and County Courts Jurisdiction Order 1991 (as amended), ‘a claim for money in which the County Court has jurisdiction may only be commenced in the High Court if the value of the claim is more than £100,000’.
As regards costs, the Civil Procedure Rules 1998 (CPR) costs regime essentially preserves the general principle that costs follow the event. However, costs are very much in the court’s discretion and no consistent practice can be said to have ever emerged. If the application fails, the applicant is more likely than not to be responsible for the costs of all the parties, although the more meritorious the claim the more probable it is that the court might relieve him of part or all of his burden (cf., e.g., Wooldridge v Wooldridge  3 Costs LO 531). Costs will also be influenced by any reasonable offer of a settlement made by the defendants. In this respect the CPR introduced a procedure—known as Part 36 offers—for making offers to settle and payments into court (see J. Ross-Martyn and N. Caddick, Williams, Mortimer & Sunnucks—Executors, Administrators and Probate, 21st edn (2018) para. 56-09). This procedure is broadly similar to the previous practice (sending ‘Calderbank’ letters) but has a much more clearly defined costs regime. It should also be borne in mind that under the CPR the proceedings may take the form of an alternative dispute resolution procedure if the court considers it appropriate. Ross-Martyn and Caddick suggest (at para. 56-08) that ‘[m]ediation should be at the forefront of practitioners’ minds when dealing with 1975 Act claims and should be pursued save in very exceptional cases’, and that ‘[a]necdotally, many, if not most, family provision cases settle at or shortly after mediation which suggests it is particularly successful in this field and results in a great deal of saving in costs, time and anxiety’.
9.2.3 When must the applicant apply?
Section 4 of the 1975 Act states:
An application for an order under section 2 of this Act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out (but nothing prevents the making of an application before such representation is first taken out).
Section 4 attempts to strike a balance between the need to distribute the deceased’s estate promptly and the need to ensure that potential applicants have a reasonable period in which to learn of the deceased’s death and decide whether to apply. Also, the period will allow some time for negotiations between potential applicants and p. 303↵the beneficiaries of the estate. Accordingly, personal representatives should not distribute the estate within the six-month period if there is any possibility of an application being made (they may incur personal liability as a result). However, once the period has elapsed they may safely distribute the estate, and cannot be held personally liable for doing so: s. 20(1).
There are two main issues under s. 4: what is meant by representation ‘first taken out’, and when will the permission of the court be granted for a late application?
184.108.40.206 Representation first taken out
Suppose that following the deceased’s death it is assumed that he died intestate and a grant of administration is made as a consequence. A valid will is later discovered. Does the period run from the original grant of administration or from the later grant of probate? In Re Freeman  1 WLR 1419, probate was granted of a will in which the testator had provided for his cohabitant and his parents. Over three years later the grant of probate was revoked because the will was shown to have been invalidly executed. Letters of administration were granted to the deceased’s mother. The cohabitant applied under the 1975 Act some eight months after the grant to the mother. It was held that ‘representation’ in s. 4 means valid or effective representation. Hence the period ran from the grant of administration to the mother. The position would have been the same in the converse circumstances—valid will discovered after previously assumed intestacy—or where probate of a will is revoked because of the discovery of a later will. But if the same will receives common form probate and (later) solemn form probate, the period runs from the earlier grant: Re Miller  1 WLR 583 (for the different forms of probate see 220.127.116.11). The date on which representation is considered to have been first taken out has been affected by the technical reforms in sch. 3 of the Inheritance and Trustees’ Powers Act 2014, which amends s. 23.
It is unclear whether the period of six months begins on the date on which representation is taken out or the following day. There is some strength in the argument that the phrase ‘from the date’ in s. 4 is most naturally construed as excluding the date on which representation is taken out, and that is the view of the editor of Tyler’s Family Provision, 327.
Can an application be made before a grant of representation is taken out? Until the Inheritance and Trustees’ Powers Act 2014, this was unclear. In Re McBroom  2 FLR 49 it was held that such an application must be struck out as being premature but the ruling was criticised and was inconsistent with Re Searle  Ch 73, which came to the opposite conclusion in an application under the 1938 Act. The 2014 Act added the clarification that ‘nothing prevents the making of an application before such representation is first taken out’.
18.104.22.168 Permission for late applications
Section 4 rightly gives the court a discretion to allow late applications, but does not indicate how such discretion is to be exercised. A leading case is Re Salmon  Ch 167, where the application was made over five months after the time limit had expired. The fault for the delay was wholly on the applicant’s side (caused by her solicitors). Megarry VC disallowed the application but hinted strongly that an action for negligence against the solicitors would lie. In Re Dennis  2 All ER 140, the applicant applied some eighteen months late in respect of his millionaire p. 304↵father’s estate, seeking to secure provision in order to satisfy the applicant’s large debt to the Inland Revenue. Since children can apply for provision only by way of maintenance, the court did not regard the applicant as having an arguable case. The applicant was refused permission to apply out of time, the court emphasizing that in such applications it was relevant to consider the merits of the application. The more meritorious it was, the greater the chance of the court granting permission.
Another case where the merits of the application proved to be a crucial factor— this time in favour of the applicant—was Stock v Brown  1 FLR 840. An elderly widow was left a life interest in her husband’s investments and the former matrimonial home. She accepted these benefits, but some years later interest rates fell sharply, with the result that the widow no longer had enough to live on. She applied for provision out of the estate nearly six years out of time. The court exercised its discretion to allow the application to proceed. The burden on the applicant was a heavy one when the time limit had been exceeded as grossly as in this case. But in her favour was the perception of the court that her application was a meritorious one, that she had not received independent legal advice when her husband had died, that the interests of the other beneficiaries would not be prejudiced by a late application, and that extraneous events outside her control (the collapse of interest rates) had triggered her application. The particular emphasis placed by the court on the last-mentioned factor—uncontrollable extraneous events—was a novel feature of Stock v Brown. The facts of Escritt v Escritt (1982) 3 FLR 280, CA, were similar in that the applicant changed her mind and applied several years after the time limit had elapsed (because of her deteriorating health and financial position). But the court took the view that it should not permit the applicant to make the claim irrespective of the length of time that had elapsed, given that she had decided not to apply with full understanding of her position. The two cases can be reconciled on the ground that in Stock v Brown the applicant had not had independent legal advice and thus had not made a conscious decision not to apply with full understanding of her legal position.
What if the applicant is a child below the age of majority—does the court need to show special consideration in such a case in exercising its discretion to grant leave? In Re C  2 FLR 24, the applicant was the eight-year-old daughter of the deceased. He left his substantial estate to his sister subject to a power in trustees to appoint (in the two years following his death) in favour of a potentially wide class of beneficiaries, including the applicant (but the trustees did not appoint in her favour). The mother took no steps for some thirty months to claim under the 1975 Act on the child’s behalf. Wilson J stated (at 28) that ‘it would be wrong to discern any general principle in favour of granting permission to a minor child. In relation to permission, Parliament has chosen not to distinguish between the minor child and any other claimant’. Nevertheless, leave to apply out of time was granted because of the merits of the application—the prospects of success were substantial—the fact that there had not yet been any distribution of the estate, and because the child would be without an effective remedy as a result of another’s fault if permission was refused.
The court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.
The onus is on the applicant to show sufficient grounds for the granting of permission to apply out of time.
The court must consider whether the applicant has acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit.
Were negotiations begun within the time limit?
Has the estate been distributed before the claim was notified to the defendants?
Would dismissal of the claim leave the applicant without recourse to other remedies?
Looking at the position as it is now, has the applicant an arguable case under the Inheritance Act if I allowed the application to proceed?
In spite of the finding that the claim had substantive merit, the Court of Appeal declined to allow an extension because the claim had been brought six years out of time for no good reason. In Cowan v Foreman  EWCA Civ 1336 (para. 45), however, the Court of Appeal denied that a ‘robust approach’ had to be taken to s. 4, that it was to be applied ‘for its own sake’ (para. 46), that it has a disciplinary element, or that a good reason for delay was a necessary condition for a successful extension application. Asplin LJ did consider a real prospect of success to be such a necessary, and potentially determinative, condition. On the facts, she concluded that it was arguable that the applicant wife should have had outright rather than trust-based provision made for her in light of the relationship length and estate size, and that the s. 4 power should be exercised notwithstanding a near-seventeen-month delay during which negotiations had continued. Asplin LJ also approved some remarks from Bhusate v Patel  EWHC 470 (Ch), where Master Marsh granted permission for an application almost twenty-six years out of time because the claim had very strong merits (in that the ‘unsophisticated’ widow would be left homeless if it did not proceed) and the delay was explained by her powerlessness and the defendants’ obstructiveness. By contrast, shortly before the Court of Appeal judgment in Cowan, permission was refused in Re Hendry  EWHC 1976 (Ch). There Master Shuman was influenced by the fact that the applicant (a separated former spouse) had given an insufficient reason for the delay of less than two months, that there were no relevant ‘effective’ negotiations between the parties, that the applicant’s solicitors had admitted missing the deadline such that she appeared to have a remedy in negligence against them, and the fact that her substantive claim was not strong (albeit arguable) in light of a pre-nuptial agreement.
It should be noted that the court may adjourn an application, whether late or not, in appropriate circumstances. This may be particularly useful in the case of under-age applicants: see Carr v Carr  11 CL 503, where an application by the deceased’s stepdaughter, aged 9, was adjourned until her 21st birthday as the court was satisfied that she would be adequately maintained by her mother until that time.
Under the 1975 Act the court has power to make a wide range of orders for eligible applicants, similar to those available in matrimonial proceedings on divorce. By the time it comes to make an order, the court will already have decided that the will and/or the intestacy rules have failed to make reasonable financial provision for the applicant, taking into account the s. 3 factors, and it will take those factors into account again when deciding which order(s) to make. Before the ground of the application and the s. 3 factors are discussed in detail in 9.4, however, it may assist the reader to understand what the court has in its ‘toolbox’.
9.3.1 Section 2 orders
The court has power to make one or more of the orders specified in s. 2(1) of the Act ‘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’. Here again we have a reminder that a 1975 Act application proceeds in two stages. First, the court considers whether reasonable financial provision has been made for the applicant (see further 9.4). Secondly, if no such provision has been made, the court considers which orders (if any) to make. There are seven orders specified in s. 2(1).
22.214.171.124 Periodical payments: s. 2(1)(a)
The court may order out of the net estate of the deceased ‘such periodical payments and for such term as may be specified in the order’. The court thus has a discretion as to the quantum and the length of the order. Under s. 2(2), the order may provide for:
payments of a specified amount; or
payments equal to the whole income of the net estate, or a specified portion thereof; or
payments equal to the whole of the income of such part of the net estate as the court directs to be set aside or appropriated.
Or the order may provide for the amount of the payments or any of them ‘to be determined in any other way the court thinks fit’. It should be noted that under (c) the court may set aside a specific part of the net estate for the purpose of making payments out of the income. This is similar to the powers of the court to secure periodical payments in matrimonial proceedings.
The court may order periodical payments to be made for the term specified in the order. This allows the court a complete discretion in the matter, except that an order in favour of a former spouse/civil partner or judicially separated spouse/civil partner is automatically ended by the remarriage or entry into a subsequent civil partnership of that spouse/civil partner: s. 19(2). This exception does not apply to surviving spouses/civil partners or, it seems, cohabitants: subsequent marriage/entry into a civil partnership does not automatically terminate an order (but may be a ground for variation or termination: s. 6, see 126.96.36.199). An order for periodical payments will often be ordered to run from the deceased’s death, but the court may order otherwise—for example, from the date of the court’s judgment.
The court may order the payment out of the net estate ‘of a lump sum of such amount as may be so specified’. Lump sum orders may be made whatever the size of the estate, but they will be particularly appropriate if the estate is too small to bear periodical payments. Moreover, they are potentially useful in aiding the administration of the estate since they may dispose of an application once and for all: lump sums cannot be varied. In Re Besterman  Ch 458, CA, Oliver LJ drew particular attention (at 478) to the fact that such orders are not variable:
I also think that the absence, which is inherent in a lump sum order, of an opportunity to return to the court does mean that, in assessing the lump sum, the court must take rather greater account than might otherwise be the case of contingencies and inflation.
The court may order a lump sum to be paid by instalments: s. 7(1). Such an order may subsequently be varied as to the number of instalments payable, the amount of any instalment, and the date of payment: s. 7(2). But the amount of the order cannot be varied.
188.8.131.52 Transfer of property: section 2(1)(c)
The court may make ‘an order for the transfer to the applicant of such property comprised in that estate [the net estate] as may be so specified’. This is an important power in practice—a necessary adjunct to the other powers of the court. For example, if the applicant establishes a need to be housed (such as the surviving spouse or cohabitant), it will be this power which will enable the deceased’s home to be transferred to the applicant. Also, the power can be useful in order to avoid an improvident realization of assets in the net estate. It seems that ‘property’ in s. 2(1)(c) is to be given a wide meaning. It includes, for example, ‘any chose in action’: s. 25(1). An order under s. 2(1)(c) cannot be varied.
184.108.40.206 Settlement of property: section 2(1)(d)
The court may make ‘an order for the settlement for the benefit of the applicant’ of such property comprised in the net estate as may be specified. The settlement ordered may take various forms but it cannot be subsequently varied. A settlement of property may be particularly appropriate where the applicant is a minor, or where future contingencies need to be addressed. The court may confer on the trustees of the settlement such powers as appear to be ‘necessary or expedient’: s. 2(4). In Re Abram  2 FLR 379 the court ordered a settlement whereby half the estate was settled on the applicant for life on protective trusts so that if he became bankrupt or tried to dispose of his interest, the life interest would be replaced by a discretionary trust for him and his family.
220.127.116.11 Acquisition of property: section 2(1)(e)
The court may order the acquisition of specified property out of assets from the net estate, and its transfer or settlement to the applicant ‘for his benefit’. This power will be useful, for example, if the applicant needs a home, but a smaller one than that comprised in the net estate; or where the estate does not include any home. An order under s. 2(1)(e) cannot be varied.
The court can make an order varying:
any ante-nuptial or post-nuptial settlement (including such a settlement made by will) made on the parties to a marriage to which the deceased was one of the parties, the variation being for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage.
The equivalent power for civil partnerships is contained in s. 2(1)(g). The Act does not define ‘ante-nuptial or post-nuptial settlement’, but the power under s. 2(1)(f) is similar to that exercisable in matrimonial proceedings. The matrimonial courts have interpreted the term as including any financial arrangement of a continuing nature which makes provision for spouses in their capacity as spouses. For example, in Brooks v Brooks  AC 375, HL, it was held that a pension scheme in a family company, under which the spouses were entitled to benefit, could be regarded as a nuptial settlement and thus could be varied on divorce. An order for variation can be made only for the benefit of spouses/civil partners, children, or children of the family, and not for dependants and cohabitants. The order cannot be varied.
18.104.22.168 Variation of trusts arising out of will/intestacy: section 2(1)(h)
Following its consultation process, the Law Commission expressed concern that ‘the court lacks the power to vary—for the benefit of the applicant—trusts which have arisen under the deceased’s will or by operation of the intestacy rules’, except for purposes ancillary to another order (Law Com. No. 331, para. 7.122). The Inheritance and Trustees’ Powers Act 2014 therefore inserted s. 2(1)(h) into the 1975 Act, which confers a power to make ‘an order varying for the applicant’s benefit the trusts on which the deceased’s estate is held (whether arising under the will, or the law relating to intestacy, or both)’.
22.214.171.124 Who bears the loss?
If an order is made under s. 2, it follows that one or more beneficiaries under the will or intestacy are bound to have their entitlement adversely affected. Section 2(4) enables the court to make ‘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’. More specifically, s. 2(4) enables the court to:
order any person holding property from the net estate to transfer it or make such payment as may be specified;
vary the disposition of the estate affected by the deceased’s will or 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’;
In Re Preston  2 All ER 961, the testator, anticipating a possible successful application by his estranged wife, directed that the beneficiaries under his will should bear the burden of any subsequent order in certain proportions. The court made an order in favour of the wife, apportioned the burden quite differently, and held that it had the discretion not only to apportion unequally between different classes of beneficiaries, but even between members of the same class, exonerating some at the expense of others.
126.96.36.199 Variation of orders
Section 6 of the 1975 Act gives the court extensive powers of varying periodical payment orders. No other orders are capable of variation (but instalments in lump sum orders can be varied: see 188.8.131.52). Variation includes discharging an order, or suspending (or reviving) any of the order’s provisions. Moreover, the court’s powers include making (s. 6(2)):
a new periodical payments order;
a lump sum order; or
a transfer of property order.
It should be noted that although lump sum and transfer orders cannot be varied, such orders can be made on an application to vary a periodical payments order. The court may of course alter the duration of the previous order or the circumstances in which it is to terminate. The Act does not specify the grounds on which a variation may be sought, but usually it is because there has been a change in circumstances such as the remarriage of an applicant. The court must pay regard ‘to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard’ (the factors in s. 3) when making the order sought to be varied: s. 6(7).
In Taylor v Bell  EW Misc B3 (CC), a consent order had been made under the 1975 Act with the aim of maintaining the deceased’s son during his sixth form and university studies. As things turned out, the son did not complete his studies by the time anticipated by the order, for reasons including a car accident, his learning difficulties, and the real possibility that he was a sufficiently talented singer to merit a place on a relevant and prestigious postgraduate course. The son successfully applied to vary the original periodical payments order so that maintenance could be provided for a longer period. The judge gained limited assistance from authorities relating to the matrimonial and personal injury contexts, noting inter alia the width of his discretion and the fact that only a small portion of the money set aside for the applicant’s maintenance had thus far been used for the purpose.
Who can apply for a variation order? Under s. 6(5), any of the following may apply:
any person who by virtue of s. 1(1) has applied for a s. 2 order (or would be entitled to apply but for the time limit in s. 4);
the deceased’s personal representative;
the trustees of any relevant property; and
any beneficiary of the deceased’s estate.
p. 310↵It should be noted that an applicant under s. 1(1) who failed to obtain an order may nevertheless apply for variation under s. 6. However, since variation can be sought only if an order has been made by the court, it follows that the failed applicant cannot have locus standi unless someone else has obtained an order.
9.3.2 Interim orders: s. 5
Interim orders enable the court to give immediate financial assistance to an applicant for a s. 2 order, prior to the hearing of the application. They are in essence a holding question pending a final determination of the case. Under s. 5(1), the court may order from the net estate ‘such sum or sums and (if more than one) at such intervals as the court thinks reasonable’. Thus the court can order lump sum and periodical payments; both may be appropriate in some cases. In Re Besterman  Ch 458, CA, a widow was made an interim order consisting of a £75,000 lump sum to enable her to move to a smaller property, and £15,000 income per annum.
The order may be made ‘subject to such conditions or restrictions, if any, as the court may impose’: s. 5(1). For example, the court might require the applicant to repay any sums paid under the interim order if the application fails. Or the court might provide that sums paid under an interim order shall be treated as having been paid on account of any payments resulting from the final order: s. 5(4). In making a s. 5 order the court must have regard to the factors specified in s. 3 ‘so far as the urgency of the case admits’: s. 5(3). An interim order can be varied.
When can the court make an interim order? Section 5(1) provides that the order can be made if it appears to the court:
that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made under s. 2; and
that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant.
‘Immediate need’ can arise in various ways, but often will involve the payment of mortgage instalments or rent, or having to move out of the matrimonial home (as in Re Besterman). In Smith v Smith  EWHC 2133 (Ch) interim provision was refused because of poor evidence and non-disclosure on ‘immediate need’. In T v V  EWHC 214 (Fam), an application for interim provision to cover legal fees was similarly refused on grounds of lack of evidence of ‘immediate need’. A s. 5 order was considered draconian, particularly where the merits of the substantive claim (including eligibility under s. 1(1)(e)) and the likelihood of repayment of any sum were in doubt. As regards s. 5(1)(b), an interim order is unlikely to be made unless there is ready money in the net estate, or property which can easily be sold so as to provide the necessary sums.
9.3.3 The net estate
The meaning of ‘net estate’ in the 1975 Act is of crucial importance since orders under s. 2 (and interim orders) can be made only out of the net estate. The term is defined by s. 25(1) which specifies five categories of property as constituting net estate.p. 311↵
184.108.40.206 Property disposable by will
Under s. 25(1), net estate includes ‘(a) all property of which the deceased had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities, including any inheritance tax payable out of his estate on his death’. This includes property situated abroad: Bheekhun v Williams  2 FLR 229. A person who is not of full age and capacity shall be treated as having the power to dispose by will of all property of which he would have had power to dispose by will if he had been of full age and capacity: s. 25(2).
Paragraph (a), although of wide ambit, does not necessarily include benefits payable under life insurance policies or occupational pension schemes, two of the most important likely assets in practice. Everything turns on the type of policy or scheme in question. The proceeds of a life insurance policy are net estate if they are payable directly to the deceased’s estate under the terms of the policy. If the proceeds do not fall directly into the deceased’s estate, but, for example, pass under a trust in favour of a particular beneficiary, such proceeds are not net estate. As regards occupational pension schemes, death benefits will be regarded as net estate if under the scheme such benefits pass directly into the deceased’s estate, but not if they are payable directly to a particular beneficiary.
220.127.116.11 Inter vivos general powers of appointment
Paragraph (b) of the meaning of ‘net estate’ in s. 25(1) comprises ‘any property in respect of which the deceased held a general power of appointment (not being a power exercisable by will) which has not been exercised’. Had the property been subject to a general power of appointment exercisable by will, it would have been regarded as net estate under paragraph (a).
18.104.22.168 Net estate under section 8
Paragraph (c) of the definition in s. 25(1) refers to property treated as net estate by virtue of s. 8(1) or (2) of the 1975 Act. Section 8(1) is concerned with statutory nominations. If the deceased had ‘in accordance with the provisions of any enactment nominated any person to receive any sum of money or other property on his death and that nomination is in force at the time of his death’ that property is treated as net estate (less any inheritance tax payable thereon). It will be recalled that a number of statutes authorize persons who hold funds in certain bodies to dispose of their holding, usually by written nomination, up to a specified limit (see further 10.2.1.1). An ‘enactment’ for these purposes includes secondary legislation: Goenka v Goenka  EWHC 2966 (Ch).
It appears that non-statutory nominations are excluded from the definition of net estate. Such nominations are most likely to occur in certain types of pension schemes under which employees are given the power to nominate the persons to whom they wish the pension to be paid on their deaths. Case law tends to confirm that property passing under such nominations is unlikely to be regarded as net estate. In Jessop v Jessop  1 FLR 591, CA, it was held that a nomination under a pension fund held at the discretion of trustees was not net estate. Similarly, in Re Cairnes (1983) 4 FLR 225, it was held that death benefits payable under an occupational pension scheme were not part of the deceased’s net estate. The deceased had nominated the benefits in favour of his wife, and had not cancelled p. 312↵the nomination despite subsequent divorce. It seems that the court treated the fact that nominations could be made only with the consent of the trustees of the scheme as material, thus implying that some non-statutory nominations might fall within the definition of net estate.
Section 8(2) deals with donatio mortis causa—a gift made in contemplation of death (see generally 10.2.2). Such gifts are made inter vivos but are conditional on the contemplated death occurring. They pass immediate control of the property to the donee. Under s. 8(2), any property received by any person as a donatio mortis causa made by a deceased person is treated as net estate (less any inheritance tax payable thereon). In Dingmar v Dingmar  EWCA Civ 942, Lloyd LJ in his dissenting judgment described both mechanisms covered by s. 8 as ‘being processes operating on death but not through the estate of the deceased and thus, in a way, analogous with the case of a beneficial joint tenancy’ (para. 12).
The Law Commission’s proposal on mutual wills (see 22.214.171.124 of this book) would have implications for the meaning of ‘net estate’ by bringing property subject to such arrangements within that concept.
126.96.36.199 Joint tenancies: section 9
Paragraph (d) of the definition in s. 25(1) refers to property treated as net estate by virtue of s. 9. The deceased’s severable share in property held on a joint tenancy may be treated as part of the deceased’s net estate: the court ‘may order that the deceased’s severable share of that property, at the value thereof immediately before his death, shall, to such extent as appears to the court to be just in all the circumstances of the case, be treated for the purposes of this Act as part of the net estate of the deceased’.
When a joint tenant dies his interest normally passes to the other joint tenant by survivorship—a basic principle of English property law. But s. 9 allows the court to disregard this principle, where appropriate, and to regard the deceased’s severable share as part of his net estate: see, for example, Hanbury v Hanbury  2 FLR 255. Section 9 was clearly a radical departure from the basic principle, since it effectively treats the deceased as having been a tenant in common at the point of death, which may explain why the severable share is not automatically treated as net estate. The section was enacted on the recommendation of the Law Commission, whose particular concern was the common scenario where the principal asset of a married couple is the jointly owned matrimonial home. Unless the severable share was treated as net estate, there might be no property available to worthy applicants (Law. Com. No. 61, 1974, para. 139):
if one of the spouses dies and the power of the court to make an order for family provision is limited to making provision out of the estate of the deceased, no part of the value of the house will be available for such provision. In some cases the result might be that no property at all was available for an order for the maintenance of the children or other dependants of the deceased.
Originally, a court could consider whether to order that a severable share of a joint tenancy be treated as net estate only if the application for the order under s. 2 was made within six months from the date when representation with respect to the p. 313↵estate of the deceased was first taken out. The intention was to protect the surviving joint tenant against undue delay. This restriction was removed, however, by the Inheritance and Trustees’ Powers Act 2014.
If property was held by the deceased by tenancy in common, his interest is net estate by virtue of paragraph (a). Thus, before s. 9 was enacted, whether property was held by tenancy in common or joint tenancy was of fundamental importance in evaluating the deceased’s net estate. It was partly to avoid the differing consequences of these forms of co-ownership that the Law Commission recommended the enactment of s. 9.
Section 9 applies where the deceased was entitled to a joint tenancy of ‘any property’. Thus personalty is included as well as realty; and the provision applies to choses in action (such as the credit balance in a bank account): s. 9(4). In Re Crawford (1983) 4 FLR 273, the applicant received provision from the deceased’s share of a bank account that had been held jointly with the deceased’s surviving wife.
Where the deceased’s home was subject to a joint tenancy, the court will be slow to make any order under s. 9 if the surviving spouse continues to live in the home (otherwise the survivor’s occupation of the home is likely to be substantially affected). This was one of the reasons why the applicant in Kourkgy v Lusher (1983) 4 FLR 65, the former mistress of the deceased, failed to secure an order—the bulk of the estate consisted of the matrimonial home occupied by the deceased’s widow as surviving joint tenant. But if the occupant of the home is not going to be forced out, the court is much more likely to make an order under s. 9. In Jessop v Jessop  1 FLR 591, the deceased led a double life, cohabiting with a mistress and keeping in regular contact with his wife and children (the wife knew nothing about the mistress until the deceased died). The deceased became a joint tenant of the property where he cohabited with his mistress. He died intestate, his estate valued at £2,500. His wife, aged 72, was living in needy circumstances in rented accommodation. She applied for provision and was awarded £10,000. The court ordered that the deceased’s severable share of the joint tenancy should be treated as part of his net estate to the extent of £10,000, and that the respondent (the mistress) should pay that sum to the wife. The respondent had sufficient capital to do that and was not required to sell her home.
At what value is the deceased’s severable share to be assessed under s. 9? Originally, it was ‘at the value thereof immediately before his death’: s. 9(1). This caused difficulties at first instance in Dingmar v Dingmar  EWCA Civ 942, where it was held that the court could award a widow a maximum of half the value of the home at the date of the deceased’s death in 1997 (50 per cent of £40,000), rather than that at the date of trial in 2005 (50 per cent of £95,000). A majority of the Court of Appeal overturned that decision, and the Law Commission recommended that the property should be valued at ‘such date as appears to the court to be appropriate’ (Law Com. No. 331, 2011, para. 7.96). The Inheritance and Trustees’ Powers Act 2014 removed the original valuation provision from s. 9 and s. 9(1A) now provides that ‘the value of the deceased’s severable share … is taken … to be the value that the share would have had at the date of the hearing of the application for an order … had the share been severed immediately before the deceased’s death, unless the court orders that the share is to be valued at a different date’. The p. 314↵Commission argued, however, that a similar approach to s. 8 would be inconsistent with s. 10 concerning transactions at an under-value undertaken to avoid liability under the Act (on which see 9.5.1).
Where an order is made under s. 9, no one is liable ‘for anything done by him before the order was made’: s. 9(3). This provision appears to apply to the surviving joint tenant—he can dispose of the property before the order (although the property or its proceeds would be subject to tracing). The exclusion of liability clearly also applies, for example, to a bank which pays the balance of a joint account to the surviving account holder.
188.8.131.52 Dispositions or contracts: sections 10 and 11
The 1975 Act contains of anti-evasion measures whereby certain dispositions (s. 10) or contracts (s. 11) made by the deceased with the intention of defeating applications for financial provision could be subsequently policed by the court (see generally 9.5). Power is given to the court to order the recovery of property passing under such dispositions or contracts; and such property is treated as net estate by paragraph (e) of the definition in s. 25(1).
9.4 The ground of the application and matters to be considered
9.4.1 The ground and standards
On what grounds can an application be brought under the 1975 Act? Section 1(1) provides that a person may apply:
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.
The central question then is whether reasonable financial provision has been made for the applicant. This is the first stage in the court’s consideration of the application (assuming the applicant has locus standi). If the applicant shows that reasonable provision was not made for him, the court will proceed to the second stage—deciding what provision to make. In both stages the court must take into account the general and specific factors contained in s. 3. While Lord Hughes did not reject the traditional two-stage approach to the Act in Ilott v The Blue Cross  UKSC 17, reflected in the last two questions in Figure 9.1, he did say that in many cases ‘exactly the same conclusions will both answer the question whether reasonable financial provision has been made for the claimant and identify what that financial provision should be’ (para. 24).
The question is simply whether the will or the disposition has made reasonable provision, and not whether it was unreasonable on the part of the deceased to have made no provision or no larger provision for the dependant … the question is not subjective but objective. It is not whether the testator stands convicted of unreasonableness, but whether the provision in fact made is reasonable.
The emphasis on asking whether the result (rather than the deceased’s conduct per se) is unreasonable is also present in Ilott v The Blue Cross. Lord Hughes confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testator, but the reasonableness of his or her decision may be a significant consideration. He also acknowledged that there may not be a significant difference between asking whether the provision made was reasonable and whether the testator acted unreasonably, but was adamant that the correct test should be applied. The relevant date for reasonable financial provision to be assessed is the date of the hearing.
It must be emphasized that the question is whether reasonable provision has been made by the will or intestacy, or a combination of the two. In Re Robinson  WTLR 267 the deceased died intestate in a car accident. The bulk of his modest estate passed to his widow, his children receiving only small amounts. However, substantial sums were paid to them as a result of a settlement of claims made against the other motorist involved in the accident. It was held that these sums could not be taken into account in deciding whether reasonable provision had been made under the 1975 Act: it is the provision under the will or intestacy that is relevant. Accordingly, the children’s claim for a larger share of the estate succeeded. The sums paid were relevant, however, in deciding what provision should be made for the children.
Prior to the 1975 Act all applicants were subject to the same standard of provision, namely, whether they had received such provision as was reasonable for their maintenance. But the 1975 Act introduced a different standard of provision for the surviving spouse of the deceased. Thus there are two standards of provision under the Act—the surviving spouse standard, and the maintenance standard (for all other applicants).
9.4.2 The ‘matters’
Section 3 specifies the ‘matters’ which the court must take into account in applications for an order under the 1975 Act. These matters are factors or guidelines which aid the court in both stages of the application, namely, to determine:
whether reasonable financial provision has been made for the applicant; and
which orders the court should make, if any, if it is shown that reasonable financial provision has not been made.
The matters specified in s. 3 fall into two categories—the general and the particular. The general matters are relevant to all applications, whereas the particular matters apply in addition to particular categories of applicant. No indication is given as to the relative importance of the various factors. Any attempt to do so would p. 316↵admittedly be fraught with difficulty; but the absence of any weighting makes the court’s task harder and its decisions less predictable. Certainly the application of the test of reasonable financial provision in the light of the welter of factors in s. 3 makes the jurisdiction under the 1975 Act a complex one in practice. In her striking supplementary judgment in Ilott v The Blue Cross, Lady Hale lamented that ‘none [of the relevant questions are] answered by the legislation which [the Supreme Court] had to apply or by the work of the Law Commission which led to it’ (para. 49). It may be true that the questions are not conclusively resolved on the face of the 1975 Act, but the Supreme Court did of course manage to resolve the case. In any case, Lady Hale criticized ‘the unsatisfactory state of the present law, giving as it does no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance’ (para. 66). She was particularly influenced by the range of public views on the point, with some emphasizing blood ties and the need for equality between descendants, others need and others ‘desert’ through care or direct contribution to the deceased’s wealth, and what she saw as the paucity of assistance given when the additional restrictions on claims by children in the 1938 Act were not transferred to its 1975 equivalent.
In considering the matters specified in s. 3, ‘the court shall take into account the facts as known to the court at the date of the hearing’: s. 3(5). Thus the court must have regard to facts which arise after the deceased’s death. This reinforces the fundamental principle that the test of reasonable provision is not whether the deceased acted reasonably or not, but whether reasonable provision was made for the applicant. A testator might well have acted reasonably, but facts may arise after his death which make the provision for the applicant unreasonable. In Re Goodwin  1 Ch 283, the testator’s gift to his wife of his residuary estate was less beneficial than he had hoped as it became apparent after his death that a debtor of his estate (his son) was unlikely to repay a debt because of illness. The court awarded the wife increased provision, taking into account (as it must) the developments after the deceased’s death. Similarly, in Re Hancock  2 FLR 346, the court took into account that the value of the land passing under the testator’s will had increased dramatically after his death when it was bought by Tesco. There had been, unusually, a lapse of some ten years from the date of the application to the date of the hearing but it was the facts at the hearing that had to be taken into account. The court emphasized, however, that had the delay been the fault of the applicant the court may have taken a different view. In the circumstances, there being no culpability in the delay or prejudice to any party, the application succeeded (see 184.108.40.206).
9.4.3 General matters
Section 3(1) directs the court to have regard in all applications to the following matters:
the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
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;
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;
the size and nature of the net estate of the deceased;
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;
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.
220.127.116.11 Financial resources and needs of applicant
The court must have regard to the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future. In considering ‘financial resources’ the court must take into account earning capacity; in considering ‘financial needs’ the court must take into account financial obligations and responsibilities: s. 3(6). In Re Ducksbury  1 WLR 1226, the applicant’s actual earnings were rather meagre because she wanted to study art and thus could work only part-time. The court took account of the fact that her potential earnings were far greater than her actual earnings, and accordingly awarded her a lesser amount of provision than if she had no choice as to her employment. That said, in Ilott v Mitson  EWCA Civ 797, the Court of Appeal was sympathetic to the fact that the claimant’s life choices had allowed her to become a successful mother and homemaker, however much her mother disapproved, and the Supreme Court did not expressly dissent from that view ( UKSC 17) even as it reduced her award.
A person’s financial resources include earned and unearned income, pensions, allowances, and capital assets such as realty, chattels, investments, awards of damages in litigation, and money in bank and building society accounts. State aid must be taken into account, but it does not prevent the court from considering whether reasonable provision has been made. In Re Collins  Fam 56, it was argued by the Official Solicitor that it could not be said that there was a failure to make reasonable provision (on intestacy) since the applicant was receiving support from the Department of Social Security. Hollings J responded: ‘I do not consider that the fact of support from the DSS precludes consideration of whether the intestacy has or has not made reasonable financial provision for her’ (at 61–2). In Re E  1 WLR 709, an application by a widow in receipt of a state pension failed, but the decision turned on the fact that the estate was very small. In such a case the court felt that it was reasonable not to make provision for an applicant if the only effect of making provision would be to relieve the state from paying welfare benefits, leaving the applicant little better off. The issue of state benefits was a major factor in the Ilott litigation. Both the Court of Appeal and the Supreme Court purported to make an award that did not prejudice the applicant’s benefits entitlement (though they differed on how this was to be accomplished: see 18.104.22.168), but ‘the relationship between family obligations and the state’ was one of the ‘profound questions’ raised by the case without being solved by the legislation on Lady Hale’s analysis (para. 49). In Wellesley v Earl Cowley  EWHC 11 (Ch), para. 71, the Deputy p. 318↵Master asserted that ‘there is no authority that in considering a claim under the 1975 Act the court should take the deliberate step of awarding monies to an applicant so as to reduce his or her reliance on state benefits’.
The consideration of future resources is limited to those that the applicant ‘is likely to have in the foreseeable future’. In cases concerning relief on divorce, the possibility of inheriting should be taken into account only if there is a likelihood of it materializing in the foreseeable future: Michael v Michael  2 FLR 389.
As regards financial needs, both present and future, the issue of accommodation will often be central to the court’s decision. For example, the court will be slow to make any order which results in the applicant having to vacate settled accommodation, especially if the applicant is elderly and there is no suitable alternative. In Harrington v Gill (1983) 4 FLR 265, the applicant had lived for several years with the deceased in his home and had been maintained by him. She had a right to occupy a council flat but surrendered it after the deceased’s death. The applicant, aged 77 when the deceased died, had capital of about £1,400 and received a state pension. The deceased’s entire estate (worth £65,000) passed on his intestacy to his daughter, a married woman in her forties in a reasonably comfortable financial position. The trial judge awarded the applicant a lump sum of £5,000 and the income from £5,000 for life, but ordered her to vacate the home since she could be expected to find a smaller place to live in. The Court of Appeal ordered the home to be settled on the applicant for life (remainder to the daughter) in addition to the sums awarded at first instance. Dunn LJ explained the decision (at 271):
It is said, as it is so often said in these cases, that if the plaintiff were allowed to stay in the house the defendant would be kept out of her money. Having regard to the plaintiff’s age, in the natural course of events one would expect that would only be a temporary postponement and, putting myself as far as I can into the position of a reasonable man in this deceased’s circumstances, I think that he would have wanted her, after the time that they had spent together, to remain in this house for her lifetime.
In Lewis v Warner  EWCA Civ 2182, the conflict between competing interests was solved by ordering the sale of the home to the applicant for full valuable consideration. On the other hand, where continued residence in settled accommodation is thought—for whatever reason—not to be appropriate, the court may nevertheless make a lump sum order to provide alternative, and perhaps more modest, accommodation for a deserving applicant: see, for example, Graham v Murphy  1 FLR 860 and Rees v Newbery  1 FLR 1041.
The accommodation needs of an applicant do not necessitate entitlement to an absolute interest in property, and in Ilott v The Blue Cross Lord Hughes opined that ‘If housing is provided by way of maintenance, it is likely more often to be provided by … a life interest rather than by a capital sum’ (para. 15). Capital provision will not necessarily be made even where the applicant is not constrained by the ‘maintenance’ standard, however. In Davis v Davis  1 FLR 54, the testator left his residuary estate to trustees, his wife having a life interest in the proceeds. After the testator’s death the trustees bought a house for the widow’s occupation for life. She applied for a transfer to herself of the freehold of the purchased house, arguing that the will did not make reasonable provision for her in that it failed p. 319↵to make any capital provision for her. The Court of Appeal held that reasonable provision had been made, in the light of the action taken by the trustees after the deceased’s death, since the applicant was rehoused and given an adequate level of maintenance. By contrast, in Re Hodge  EWHC 688 (Ch) it was said that even though Ilott ‘emphasised that the statutory power is to provide maintenance, not to confer capital’ (para. 36), on the facts of the case the care needs of the applicant (an elderly former cohabitant) made capital provision, including the outright transfer of a cottage, reasonable.
22.214.171.124 Financial resources and needs of any other applicant
Under s. 3(1)(b), the court must consider the financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future. This provision directs the court to consider an application not in isolation but balanced against competing claims from other applicants. The meaning of ‘resources’, ‘needs’, and ‘foreseeable future’ is the same as in s. 3(1)(a) and s. 3(1)(c).
126.96.36.199 Financial resources and needs of any beneficiary
Under s. 3(1)(c), the court must consider the financial resources and financial needs which any beneficiary of the estate has or is likely to have in the foreseeable future. A ‘beneficiary’ is anyone entitled to a beneficial interest under the deceased’s will or intestacy (or combination of the two). Again, the court must balance the resources and needs of the beneficiaries against those of the applicants. It is when the court is involved in such balancing that the lack of guidance in the Act as to how to weight the various factors becomes especially problematic, and there is much deference towards the trial judge. In Musa v Holliday  EWCA Civ 1268, a conjugal partner of the deceased applied under s. 1(1)(e). She had little earning capacity, and a very bitter relationship with the six children of the deceased’s previous marriage. The Court of Appeal upheld the judge’s decision that because the net intestate estate was by some margin inadequate to provide for the applicant’s reasonable needs, she should be given the most valuable assets of the estate outright.
Moreover, the court may become involved in some potentially difficult and awkward enquiries in taking account of the resources and needs of certain beneficiaries, particularly non-human ones. The Court of Appeal took an ungenerous approach to this question in respect of the charities who were the will beneficiaries in Ilott v Mitson  EWCA Civ 797. Arden LJ opined that the charities did not have any relevant resources or needs and that anything they received from the estate was a windfall. In addition, she emphasized that they did not have any expectation of such a benefit since the testatrix had no involvement with them during her lifetime, and (somewhat implausibly) that the charities were ‘not prejudiced’ by a higher award (para. 61). The Supreme Court, however, were much more sympathetic to the charities ( UKSC 17), recognizing that charities depend heavily on testamentary provision and that, as beneficiaries under the deceased’s will, they simply did not need to justify their entitlement to the estate with reference to their own needs and resources in the same way that the applicant did.
188.8.131.52 Deceased’s obligations and responsibilities
Under s. 3(1)(d), the court must consider any obligations and responsibilities which the deceased had towards any applicant or beneficiary. This includes not only legal p. 320↵obligations—such as the duty of maintenance imposed on parents and spouses in matrimonial law—but also moral obligations recognised by the court. As discussed further at 184.108.40.206, the existence or otherwise of a moral obligation can be important in applications by children. Indeed, it is likely to be an important factor in all non-spouse/civil partner applications. Conversely, it must be remembered that s. 3(1)(d) is only one factor, and that it can apply to more than one applicant. In Fielden v Cunliffe  EWCA Civ 1508, Wall LJ took issue with the judge’s addition of the phrase ‘and that is that’ to the proposition that the deceased’s ‘primary obligation is to his wife’ (paras. 49–50).
In Re Jennings  Ch 286, the Court of Appeal held that as a general rule it was only obligations which the deceased had immediately before his death which had to be considered. It was not possible to construe s. 3(1)(d) as including legal obligations which the deceased had during his child’s minority but failed to discharge. The applicant, a successful businessman in his late forties, applied for provision out of his father’s estate, worth £300,000, which was left to remote relatives and certain friends and charities. The applicant’s parents had divorced soon after his birth; thereafter the father never had any contact with him and never made any financial provision for him or the mother. The decision that the application should fail was regrettable: the concept that obligations which were owed but never satisfied should lapse through passage of time is perhaps questionable, but the approach was considered correct by the Supreme Court in Ilott and it could be argued that this is the precise function of limitation periods that the law readily applies in many contexts.
220.127.116.11 Size and nature of the estate
Section 3(1)(e) provides that the court must consider the size and nature of the net estate of the deceased. In Re Clayton  1 WLR 969, it was emphasized that the legislation places ‘no bottom limit to the value of the estate in respect of which an application can be made’ and that ‘the smallness of the estate neither excludes jurisdiction nor full consideration’ (per Ungoed-Thomas J, at 971). Nevertheless, the judge thought that smallness of the estate was significant in three particular respects. First, the court is more likely to find that provision for the applicant is reasonable if the only effect of making an order would be to relieve the state (see 18.104.22.168 for discussion of this issue). Secondly, the smallness of the estate may affect the extent to which it can effectively contribute to the applicant’s maintenance (where that standard is applicable). This will largely depend on the applicant’s resources and needs. Thirdly, the costs of an application must be borne in mind. In Re Coventry  Ch 461 and in Re Fullard  Fam 42, the Court of Appeal emphasized that applications in small estates should be discouraged because the costs may consume much of the estate (for the same reason appeals should be discouraged). The court may well award costs against an applicant in such cases: Brill v Proud (1984) 14 Fam Law 59, CA. Conversely, in Myers v Myers  EWHC 1944 (Fam), Munby J was influenced by the fact that he was not concerned with ‘the case of a man of modest means having to make hard choices between his first and second families’, such that ‘[t]here was more than enough to go round’ (para. 87). In Ilott v Mitson  EWCA Civ 797 Arden LJ recognized that the size of the estate did not ‘impinge’ on the award sought (para. 50), although it is significant that her generosity towards the claimant was later reined in by the Supreme Court.
p. 321↵What is a ‘small’ estate? Not surprisingly the courts have eschewed laying down guidelines. Obviously there cannot be an immutable yardstick because of the changing value of money. In Re Coventry, £7,000 was considered to be a small estate. At that time (the late 1970s) the average house price in England was about £18,000. It is suggested that any estate which is valued substantially below the average house price is likely to be regarded as small.
As regards the ‘nature’ of the estate, the court should consider the effect of realizing particular assets. Suppose, for example, that there are several deserving claimants and beneficiaries, but that the estate consists principally of a house. The court will have to consider the desirability of making orders which result in the division of the house or in its sale. The source of the deceased’s assets may prove relevant. For example, in Re Sivyer  1 WLR 1482, the deceased’s estate passed entirely to his third wife under his intestacy. The applicant was his daughter by his second wife. The principal asset was the proceeds of a house which had been bought mainly out of savings owned by the applicant’s mother, the deceased’s second wife. In making an order for the applicant the court was heavily influenced by the fact that the deceased’s estate was derived primarily from the contribution of the applicant’s mother. A similar approach was taken in the applications by stepchildren in Re Callaghan  Fam 1 and Re Leach  Ch 226, CA. See also Espinosa v Bourke  1 FLR 747, where the deceased’s shares were inherited from his wife, the applicant’s mother.
22.214.171.124 Disability of applicant or beneficiary
Under s. 3(1)(f), the court must consider any physical or mental disability of any applicant or beneficiary. Since the financial resources and needs which have to be considered under s. 3(1)(a)–(c) are inevitably affected by a person’s disability, it might be concluded that s. 3(1)(f) adds little. However, the disability of an adult child is more likely to persuade the court that the deceased owed the applicant a moral obligation (see 126.96.36.199). In Moore v Holdsworth  EWHC 683 (Ch), moreover, the widow’s multiple sclerosis was ‘the matter which plainly … overrides anything else’ (para. 29).
If the disabled person is receiving state aid, the court must take that into account. In Re Watkins  1 All ER 695, it was held that the fact that the applicant was detained in a mental hospital and provided for by the state could be regarded as justifying only a limited provision in the testator’s will. However, that does not preclude the court from taking the view that the deceased can reasonably be expected to have made provision for the applicant beyond the basic level available from the state, except perhaps where the estate is small (see 188.8.131.52).
184.108.40.206 Any other matter
Section 3(1)(g) provides that the court must have regard to ‘any other matter’ considered to be relevant, including the conduct of the applicant or any other person. It was held in Re Jennings  Ch 286 that the phrase excludes the matters listed in s. 3(1)(a)–(f). What if the deceased stated reasons explaining the distribution of his estate? Need the court consider them? If they are considered relevant, such reasons must be taken into account as ‘any other matter’. However, it will be in the court’s discretion as to how much weight to attach to them. For example, in Williams v Johns  2 FLR 475 the deceased’s statement that she had never p. 322↵received the affection she had hoped for from her daughter was considered by the court but does not appear to have been regarded as significant in the decision. If a reason is shown to be spurious, it will be disregarded. In Re Clarke  1 WLR 415, the testator left most of his property to his mother and made only a small provision for his wife, stating that the latter had reneged on an agreement that they should live with his mother. The statement was disregarded since it was shown to be totally misleading as to the arrangement actually reached.
If a testator wishes to state a reason for excluding a person from his will (or leaving him less than might be expected) it is best to do so in the will or in a document placed with the will. Making such a statement—sometimes described as a ‘family provision statement’—may reduce the chances of a claim succeeding against the estate but it does not guarantee that the testator’s wishes will be upheld, as Espinosa v Bourke shows (the court regarded the moral obligation owed by the deceased as outweighing his reasons for trying to exclude his daughter). In Ilott v The Blue Cross, however, the Supreme Court held that the Court of Appeal’s enhanced award to the claimant gave insufficient weight to the deceased’s clear wish (expressed in a letter) to exclude her estranged daughter (see further 220.127.116.11).
The court may also attach significance to the clear wishes of the testator even though they are not expressed in the will which receives probate: see Rees v Newbery  1 FLR 1041, where the wishes were evident in the testator’s last intended will (he died before it could be executed).
The phrase ‘any other matter’ specifically includes the conduct of applicants or of ‘any other person’. Thus the conduct of the deceased and the beneficiaries is relevant. As with all the factors listed in s. 3, it is not clear what weight should be given to conduct. Regarding applications by spouses, it is arguable that conduct should be a significant factor only if it would be wrong to discount it. This is because in matrimonial proceedings for ancillary relief conduct is relevant only if it would be ‘inequitable to disregard it’ (s. 25 of the Matrimonial Causes Act 1973), and the 1975 Act attempts to assimilate the position of spouse applicants with those of divorced spouses. The test under the Matrimonial Causes Act has been interpreted to mean that the conduct must be ‘obvious and gross’ (Wachtel v Wachtel  Fam 72, at 90), a high threshold.
Re Snoek (1983) 13 Fam Law 18 provides an example of abnormal conduct. The applicant was left nothing in her husband’s will, all of his estate passing to his children. The evidence suggested that the marriage deteriorated because of her uncontrollable temper and frequent outbursts of violence directed at the testator, described as ‘atrocious and vicious behaviour’. The court made an order for her, but emphasized that the provision would have been substantially higher but for her abnormally bad behaviour. In Iqbal v Ahmed  EWCA Civ 900, however, the conduct of the deceased’s wife was considered ‘largely irrelevant’ (para. 10) in spite of the deceased’s recorded view that she had ‘not been a loving and caring wife before and during [his] illness’. We have also seen that even unlawful killing will not necessarily preclude a claim following Re Land  EWHC 2069 (Ch) (see 18.104.22.168).
Re Clarke  EWHC 1193 (Ch) is an example of a case where misconduct by a beneficiary favourably affected the court’s treatment of the applicant. The beneficiary in question was the testator’s daughter, whose ‘abhorrent conduct’ included ‘financial abuse of her father’, who had dementia, ‘oppression via the court p. 323↵proceedings’ of the applicant widow, misleading several protagonists including the court, flouting court orders, dissipating her father’s savings and investments, and failing to account for her doings in several relevant capacities (para. 255). Deputy Master Linwood held that in these ‘extreme’ circumstances the daughter should ‘forfeit’ £80,000 of her entitlement to the applicant (para. 257), albeit that she was still left with over £100,000.
Should good conduct be taken into account? It would seem so: the reference to ‘conduct’ in s. 3(1)(g) presumably includes good conduct as well as misconduct. The conduct of the applicant—or the deceased—may clearly determine whether the applicant was owed a moral obligation. In Espinosa v Bourke the fact that the applicant took her father into her home, gave up her part-time job, and cared for him for several years contributed to the finding that he owed a moral obligation to provide for her. In Re Snoek the court took into account the wife’s conduct in the early part of the marriage, when she had managed the home and brought up several children. B. Sloan, Informal Carers and Private Law (2013) ch. 5, advocates greater recognition of the positive caring conduct of family provision applicants. In Ilott v The Blue Cross, Lord Hughes appeared to approve the relevance of care in 1975 Act cases. He considered a hypothetical contrasting case to the estrangement in Ilott involving a ‘claimant [who was a] child of the deceased who had remained exceptionally and confidentially close to her mother throughout, had supported and nurtured her in her old age at some cost in time and money to herself, and … had been promised many times that she would be looked after in the will’. While ‘adhering to the concept of maintenance’, he held that ‘a judge ought in such circumstances to attach importance to the closeness of the relationship in arriving at his assessment of what reasonable financial provision requires’ (para. 35). That said, he was also anxious that ‘care must be taken to avoid making awards under the 1975 Act primarily rewards for good behaviour on the part of the claimant or penalties for bad on the part of the deceased’ (para. 47).
9.4.4 Particular Applicants, their Standards, and Matters
In addition to the general matters specified in s. 3(1), the court must have regard to a number of particular matters affecting each category of applicant. These particular matters are similar to the factors which courts have to consider in matrimonial proceedings, and are considered in the appropriate sections below. The differences between the ‘surviving spouse/civil partner’ standard and the ‘maintenance’ standard, introduced at 9.4.1, will also be considered in relation to each category of applicant.
22.214.171.124 Surviving spouses and civil partners
Under s. 1(2)(a), ‘reasonable financial provision’ as regards a surviving spouse means:
such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.
p. 324↵Section 1(2)(aa) makes equivalent provision for civil partners. The rationale of s. 1(2)(a)–(aa) is that the spouse/civil partner should be able to claim not just maintenance but a share of the family assets comparable to the position of a spouse on divorce or a civil partner on dissolution.
Section 3(2) provides that in the case of applications by a spouse or former spouse/civil partner the court must have regard to:
the age of the applicant and the duration of the marriage or civil partnership;
the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.
These factors are similar to those applicable in matrimonial proceedings under the Matrimonial Causes Act 1973. Age is relevant principally to the extent that it affects employment and remarriage prospects. As for duration of marriage, an applicant married for a substantial number of years is generally in a stronger position than one married for only a short period, other things being equal, as illustrated in matrimonial cases: Leadbeater v Leadbeater  FLR 789. The contribution made to the welfare of the family (s. 3(2)(b)) may take various forms but specifically includes non-financial contributions. The rationale is that spouses should not be prevented from having an arguable claim to family assets simply because they made no direct financial contribution to the welfare of the family. That said, in Miller v Miller; McFarlane  UKHL 24, para. 164, conduct and contribution were described as ‘in large measure opposite sides of a coin’, suggesting that the courts are reluctant to give weight to specific contributions.
Significantly, s. 3(2) further provides that the court shall have regard to ‘the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage [or civil partnership], instead of being terminated by death, had been terminated by a decree of divorce [or dissolution]’. Thus, decisions under the Matrimonial Causes Act 1973 as to a spouse’s entitlement on divorce are relevant to applications under the 1975 Act. According to P v G (Family Provision: Relevance of Divorce Provision)  EWHC 2944 (Fam) para. 236, however, it is not true to say that ‘the entire fictional ancillary relief [on divorce] case should be played out’ in proceedings under the 1975 Act. In White v White  UKHL 54, the House of Lords introduced a ‘yardstick of equality’ of division of assets between divorcing spouses. In Miller v Miller; McFarlane v McFarlane  UKHL 24, the governing principles were said to be meeting needs, compensating for relationship-generated disadvantage, and sharing. All of these were considered applicable to cases under the 1975 Act in Lilleyman v Lilleyman  EWHC 821 (Ch).
White was applied in Re Adams  WTLR 493 where the testator had left a legacy of £10,000 and his household goods to his wife. He left the residue of his estate, including the matrimonial home of which he was the sole owner, to his children (the couple had twelve children during their fifty-four-year marriage). The court held that, had the marriage ended in divorce, the wife could have expected an equal division of the assets. Accordingly, she was entitled to half the estate.
Although s. 3(2) enjoins the court to take account of the imaginary divorce guideline, there has been some inconsistency in the cases as to how much emphasis should be given to it, and how it is to be done. In Moody v Stevenson  p. 325↵Ch 486, CA, the deceased left all her estate (valued at about £45,000) to her stepdaughter. It consisted principally of the house in which the deceased had lived with her husband, the applicant. She had left him nothing in her will because she considered that he had adequate resources of his own. The court directed that the applicant should be able to continue living in the house as long as he was willing and able to do so. Waite J, referring to the imaginary divorce guideline, stated (at 498) that ‘the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased’s lifetime by virtue of his or her prospective entitlement under the matrimonial law’.
But in Re Besterman  Ch 458, CA, Oliver LJ thought that although the divorce expectation could be ‘a useful cross-check’ (at 498), the main consideration was what was reasonable in all the circumstances: the divorce guideline was only one of the several factors which the court had to consider. Similarly, in Re Bunning  Ch 480, the judge thought that on divorce the wife would have been awarded £36,000, but he awarded her £60,000 because on divorce the court would have had to take into account the husband’s future needs (a factor no longer applicable in an application under the 1975 Act). This is a point of fundamental importance. The analogy between divorce and death is not really close since on divorce the needs of both spouses have to be taken into account (see J. G. Miller, ‘Provision for a Surviving Spouse’  Conv 442).
In Re Krubert  3 WLR 959, the Court of Appeal emphasized the difference between divorce and death and expressed a clear preference for the approach taken in Re Besterman rather than Moody v Stevenson; namely, that the court did not have to take as its starting point what the applicant would have received on divorce. In Fielden v Cunliffe  EWCA Civ 1508, Wall LJ (at para. 21) opined that:
Caution … seems … necessary when considering the White v White cross-check in the context of a case under the 1975 Act. Divorce involves two living former spouses, to each of whom the provisions of section 25(2) of the Matrimonial Causes Act 1973 apply. In cases under the 1975 Act a deceased spouse who leaves a widow is entitled to bequeath his estate to whomsoever he pleases: his only statutory obligation is to make reasonable financial provision for his widow. In such a case, depending on the value of the estate, the concept of equality may bear little relation to such provision.
It has therefore been recognized that the differences between divorce and death could justify both increased and decreased provision under the 1975 Act. By virtue of an amendment contained in the Inheritance and Trustees’ Powers Act 2014, s. 3(2) simply provides expressly that ‘nothing requires the court to treat [the divorce or dissolution] provision as setting an upper or lower limit on the provision which may be made by an order under section 2’. In the subsequent case of Re Clarke  EWHC 1193 (Ch), it was recognized as inappropriate to award a widow the entire estate in circumstances where the testator had given her a life interest in the matrimonial home and divided the residue of the estate between his two daughters. The idea that she should receive everything was said to ignore both testamentary freedom and the validity of wishing to pass property to children. In addition, it was held to be inconsistent with the proper application of the sharing principle p. 326↵where: the widow’s needs could nevertheless be met; most of the assets had been acquired pre-marriage (and would therefore be significantly less likely to be subject to the sharing principle on divorce); and the marriage was short. This indicates that even if a deceased spouse’s needs are not a realistic consideration under the 1975 Act (as they clearly would be on divorce if he were still alive), his notional claim to a share of the relevant assets should still be respected in favour of his estate beneficiaries. On the complex facts of the case (see further 126.96.36.199), the widow was awarded around 77 per cent of the estate.
In cases such as Re Besterman, Re Bunning, and Re Krubert there were no substantial calls on the estate of the deceased apart from that of the applicant. In many cases, however, the court will have a more difficult task, having to balance the needs of several parties. For example, in Kusminow v Barclays Bank  Fam Law 66, the deceased left his entire estate (valued at £100,000) to his nephew and niece, who both lived in impoverished conditions in the Soviet Union. An application was brought by his wife, who was elderly and arthritic. She had left the deceased a year before he died and was living in rented accommodation. The court held that the applicant was entitled to a sufficient capital sum to ensure her future, but that her needs had to be balanced against the obvious needs of the beneficiaries. The applicant was awarded a lump sum of £45,000.
Re Grattan  WTLR 1305 demonstrates another difficulty with the divorce guideline in s. 3(2). There may be cases where the court will derive little or no assistance from that guideline because it cannot estimate what the applicant would have received on divorce. In Re Grattan the judge found it impossible to estimate the likely divorce provision because it was not known what the income position would have been on divorce or how many of the insurance policies—which constituted the bulk of the liquid assets in the estate—would have been payable in the event of a divorce.
Separation of spouses and subsequent relationships of the deceased can have a fatal impact on claims by that spouse. In Hope v Knight  EWHC 3443 (Ch), the deceased had made a separation agreement including provision for his wife nineteen years before he had died, although they never actually divorced. On the facts, it was held to be perfectly reasonable that he left his estate to his subsequent long-term partner, and it was not open to the wife to re-open the separation agreement after his death using the 1975 Act.
The surviving spouse/civil partner standard under s. 1(2)(a) is not generally applicable to a judicially separated spouse or civil partner. However, the court has the discretion to apply that standard provided that (i) the deceased died within twelve months of the granting of a decree of judicial separation, and (ii) the court had not made an order for financial provision in matrimonial proceedings by the time of the deceased’s death: s. 14 (and s. 14A for civil partners). These sections apply also (subject to the same restrictions) to former spouses and civil partners who have not remarried or entered a subsequent civil partnership. It enables the court to deal more satisfactorily with cases where the deceased dies shortly after a decree and before the surviving spouse/civil partner has been able to obtain a financial settlement in matrimonial proceedings. In the case of judicial separation, s. 14 does not apply unless the decree was in force and the separation was continuing when the deceased died: s. 14(2). If, following their separation, the parties had arranged their affairs conclusively, it is unlikely that an application will succeed under the 1975 Act: Parish v Sharman  WTLR 593, CA.
As regards all applicants other than the surviving spouse/civil partner (and the exceptional cases in s. 14), ‘reasonable financial provision’ means ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.
What is meant by ‘maintenance’? The Act does not define the term but s. 1(3) defines ‘being maintained’, for the purposes of s. 1(1)(e), in terms of a substantial contribution to the reasonable needs of the applicant (see J.G. Miller, ‘Provision for Adult Children under the Inheritance (Provision for Family and Dependants) Act 1975’  Conv 22). One might reasonably expect some correlation between the meanings of ‘being maintained’ and ‘maintenance’, especially as the terms appear in close proximity in the Act. The case law on the meaning of ‘maintenance’ shows some inconsistency. In Re Christie  Ch 168, the court held that the term referred to ‘the applicant’s way of life and well-being, his health, financial security’ (at 174). However, this interpretation was regarded as too wide by the Court of Appeal in Re Coventry  Ch 461, where Goff LJ commented (at 485):
What is proper maintenance must in all cases depend on all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by, on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.
In Re Dennis ( 2 All ER 140; see further 188.8.131.52), the applicant, the son of a rich father, was described by the judge as ‘a spendthrift drifter who has spent substantial periods of his life depending on, and dissipating, moneys provided by other people’ (at 143). A major issue was whether he could seek an order under the Act in order to pay a large tax debt incurred from the lifetime gifts made to him. It was held that provision for the payment of this debt could not be regarded as maintenance. Browne-Wilkinson J stated (at 145–6):
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 definition has subsequently been approved by the Court of Appeal several times, and by the Supreme Court in Ilott v The Blue Cross  UKSC 17. The judge in Re Dennis recognized the possibility that maintenance could include the payment of debts in some cases—for example, to enable the applicant to continue to carry on a profit-making business or profession. Re Dennis was applied in Re Goodchild  1 WLR 694, where the applicant, the son of the deceased, had substantial business debts. The court thought that provision was appropriate to relieve him of his financial difficulties and referred the matter back to the parties for final settlement. However, the discharge of business debts was the main purpose of the order made in Espinosa v Bourke  1 FLR 747 (see 184.108.40.206). Consider, moreover, p. 328↵Re Abram  2 FLR 379, where the court declined to make a capital provision for an applicant who had entered a voluntary arrangement under the Insolvency Act 1986. Under the arrangement, any capital sum received by the applicant from the deceased’s estate was payable to his creditors. The court was prepared, however, to order a settlement whereby the applicant could receive income from the estate for his maintenance (see 220.127.116.11).
In Ilott, the Supreme Court considered the maintenance standard at some length. The limitation to maintenance for non-spouse/civil partner applicants was described as a ‘deliberate legislative decision’ that was ‘important’ (para. 13). Maintenance could not ‘extend to any or every thing which it would be desirable for the claimant to have’ (para. 14), but was not limited to ‘subsistence’ either (para. 15). It was seen earlier (at 18.104.22.168) that the court held that while there is no reason why housing cannot be maintenance in some cases, it should be remembered that the overall power is to provide for maintenance, and housing is more likely to be provided by way of a life interest rather than a capital sum, albeit that it was also seen that the outright transfer of a property can still be appropriate (as in Re Hodge  EWHC 688 (Ch)).
A need for maintenance was unsurprisingly seen as a necessary but not sufficient condition in Ilott. But needs would not necessarily be the measure of what is provided by the court if it has been concluded that reasonable financial provision has not been made by the will and/or the intestacy rules: the claims of others, and importantly the relationship between the claimant and the deceased, could justifiably limit the size of the award.
Can provision be sought for payment of a mortgage debt? In Re Jennings it was held (somewhat harshly) that although the discharge of a mortgage could be regarded as desirable for the applicant’s general benefit, it did not enable him to discharge the cost of daily living at the standard appropriate to him. The court considered Re Callaghan  Fam 1, where (as in the Court of Appeal in Ilott, but overturned in the Supreme Court) an order was made enabling the applicant to buy his council house at an advantageous price without the burden of taking on a mortgage. Re Callaghan was distinguished in Re Jennings (where the applicant was much more financially secure) on the ground that the applicant in Re Callaghan ‘had a need which enabled him to say that the provision was reasonably required for his maintenance’ (per Nourse LJ, at 37). The decision in Re Callaghan was consistent with remarks in Re Dennis to the effect that provision could be ordered by way of a lump sum to enable an applicant to buy a house, thus relieving him of income expenditure. In Banfield v Campbell  EWHC 1943 (Ch) it was considered appropriate, following a twenty-year relationship, to award the cohabitant a life interest in half the sale proceeds of the deceased’s home to relieve him of the liability to pay rent.
A recurring element in the court’s interpretation of ‘maintenance’ has been the emphasis on the standard of living ‘appropriate’ to the applicant. In several cases the courts have quoted with approval a dictum from the Canadian decision Re Duranceau  3 DLR 714, at 720:
Is the provision sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?
p. 329↵The problem with this approach is that there is doubt as to whether ‘station in life’ refers purely to material circumstances or to other considerations (status, for example, or birth). Moreover, a person’s ‘station in life’ is not necessarily immutable: should the court consider the applicant’s latest circumstances rather than the previous lifestyle? In the case of former spouses and cohabitants, the length of the relationship may be a critical factor. In Malone v Harrison  1 WLR 1353, the applicant became the mistress of the deceased, a successful businessman, and for twelve years was wholly maintained by him in a lavish lifestyle (expensive holidays, luxurious flats, gifts of cars and shares). She had previously lived in a council flat in an underprivileged area in Birmingham, and had worked as a telephonist and receptionist at a low salary. In ordering provision for her, the court took into account the lifestyle to which she had become accustomed. The provision made—a lump sum of £19,000 out of an estate valued at £480,000—seems prima facie distinctly ungenerous, but was considered sufficient to enable her to maintain a reasonable lifestyle. She was still young and had received considerable assets from the deceased during his lifetime. He had several other calls on his estate, and had in any case always made it clear to the applicant that he would not make provision for her in his will. An unusual feature of this case was that the court assessed the applicant’s financial needs by reference to a multiplicand representing the extent of her dependence, and a multiplier. This is a method common in personal injury litigation but not in 1975 Act proceedings.
In Graham v Murphy  1 FLR 860, the applicant and deceased lived together as a couple for some eighteen years, at first in jointly rented accommodation, but thereafter in houses bought in the deceased’s name. Latterly they had enjoyed a high standard of living due to the substantial income that the deceased received from her family business. The deceased died intestate, her estate (about £240,000) passing to her surviving family. The applicant claimed under s. 1(1)(e) and was awarded a lump sum of £35,000 to help him purchase a modest house or flat. The court took the view that it would not be proper to provide him with a particularly high standard of living by way of maintenance. The clear message from Graham v Murphy and Malone v Harrison is that the appropriate standard of maintenance for a successful applicant will not necessarily replicate the standard of living to which he has been accustomed in the period preceding the death of the deceased. In Ilott v The Blue Cross, however, it was considered appropriate to use the Act to raise the applicant’s standard of living, albeit much less so in the Supreme Court than in the Court of Appeal. Conversely, according Lewis v Warner  EWCA Civ 2182, ‘maintenance’ can encompass an arrangement for full consideration. In the case at hand, it was held that the applicant former cohabitant could be granted an option to have the deceased’s home transferred to him in return for a payment of £385,000. The fact that he was not short of money did not mean that the transfer fell outside the definition of ‘maintenance’ given the value of being able to stay in the home he shared with the deceased in light of his age and disability. Sir Geoffrey Vos held that there were ‘clear indications in Lord Hughes’s judgment in Ilott to the effect that the broad concept of “maintenance” in section 1(2)(b) of the 1975 Act can extend to the provision of a house in which the applicant can live’ (para. 25). The recorder had found that the deceased had maintained the applicant in providing a roof over his head, and that he needed the maintenance to continue (even in the form of a transfer for full value) rather than being required to move p. 330↵house. Those findings were open to him and it was entirely lawful and appropriate to make the order that he did in the exceptional circumstances of the case.
The following sections address the maintenance standard and other relevant factors in the context of particular categories of applicant.
22.214.171.124 Former spouses and civil partners
The fact that all the categories of applicant—apart from the surviving spouse/civil partner—are limited to applying for maintenance has diverse consequences. For example, former spouses will not normally have a realistic claim. This is because in the vast majority of divorces, the maintenance issue will already have been settled in the matrimonial proceedings. In Re Fullard  Fam 42, the Court of Appeal commented that there would be few cases—in view of the court’s powers in matrimonial proceedings—in which it would be possible for a former spouse to show that reasonable financial provision had not been made. Nevertheless, the court indicated the circumstances (not exhaustive) in which an application from a former spouse might succeed (per Purchas J, at 52):
where there has been a long period of time since the dissolution of the marriage in circumstances in which a continuing obligation to support the ex-spouse has been established by an order of the court, by consent or otherwise, under which periodical payments have been, and continue to be, made up to the date of the death. There may be circumstances … where the death itself unlocks a substantial capital sum of which the testator should have been aware, and from which, had he made a will at the time immediately before his death, he ought, within the criteria of the 1975 Act, have made some provision. There may be other incidents of further accretion of wealth, but I doubt that the mere fact of accretion of wealth after the dissolution of the marriage would of itself justify an application.
A former wife succeeded in Re Crawford (1983) 4 FLR 273. Following a divorce after a long marriage, the deceased agreed to pay the applicant one third of his gross salary by way of maintenance. He continued to be responsible for these payments for over eleven years until he died, although there was a long period when he defaulted. The applicant’s financial resources were ‘extremely slim’ when the deceased died (he made no provision for her in his will). His surviving wife and children were well provided for by the will and through other benefits. The court awarded a lump sum of £35,000 to the applicant (potential value of the estate was about £65,000). In Re Farrow  1 FLR 205, a former wife succeeded mainly because the deceased died less than a year after being ordered (in the matrimonial proceedings) to make periodical payments to her. She had benefited from the periodical payments for only a short time.
But in Cameron v Treasury Solicitor  2 FLR 716, CA (see 126.96.36.199), a former wife failed in an application in respect of an intestate estate (valued at £7,677) which had passed to the Crown as bona vacantia. There were no special circumstances to demonstrate that the lack of provision for her was unreasonable. The estate could not be treated as a windfall to be distributed to a person because she was in need and in ill health. A similar view was taken by the Court of Appeal in Barrass v Harding and Newman  1 FLR 138. The deceased and the applicant—his first wife—were divorced in 1964 after twenty-five years of marriage. Under the divorce p. 331↵settlement the deceased’s sole obligation was to provide his wife with a flat. This he discharged until she decided voluntarily to leave the flat (in exchange for a modest capital sum) and to go and live with their son. Thereafter there was no ongoing relationship between the deceased and the applicant. After the death of his second wife in 1996, the deceased made his last will leaving his estate (valued at about £200,000) to his second wife’s sister. He also gave some financial help to the son shortly before the deceased’s death. The applicant lived in poor financial circumstances. The Court of Appeal—reversing the first instance judgment—held that the deceased’s failure to provide for the applicant was not unreasonable. The court purported to follow Re Fullard. The value of the estate was not a special circumstance to be taken into account; nor was the act of generosity towards the son. Moreover, the court did not attach weight to the argument that the divorce settlement reached in 1964 would now be viewed as distinctly ungenerous to the applicant.
188.8.131.52 Children and children of the family
Restricting children of the deceased to maintenance out of the estate is arguably questionable. Unlike the surviving spouse, the deceased’s child cannot apply for a share of the estate simply because of the relationship between child and parent. In this respect the child in English law is in a substantially inferior position compared to his counterpart on the continent (where fixed rights of inheritance are the norm). Should children not be treated on more of an equal footing with the surviving spouse, especially now that remarriage has become more common?
Section 3(3) provides that in applications made by children of the deceased (s. 1(1)(c)) and by children treated by the deceased as children of the family (s. 1(1)(d)), the court must consider ‘the manner in which the applicant was being or in which he might expect to be educated or trained’. This factor has prompted little discussion in the case law, but clearly it will be relevant to consider the educational background and aspirations of the applicant and the deceased. There may be circumstances in which a child ‘might expect’ to be educated privately, for example, or be suited to a special needs school. Since children can apply for provision only by way of maintenance, it follows that maintenance is regarded under the Act as including the costs of education. This was confirmed in Taylor v Bell  EW Misc B3 (CC).
Applications by minor children are essentially uncontroversial. In Ubbi v Ubbi  EWHC 1396 (Ch), the deceased’s last will pre-dated the birth of the two applicant infant children (outside marriage due to an affair), and left his entire estate to his wife, who was the mother of another of his children. It was noted that the 1975 Act ‘does not provide for the financial needs of an applicant infant child to be elevated to a first or paramount consideration’, and ‘[o]ften there may be competing interests between an applicant infant child and infant beneficiaries’, which ‘need to be balanced’ such that it was ‘unhelpful’ to determine whose needs take priority (para. 19). That said, ‘the fact that a claim is brought by an infant child is a vital part of the factual matrix’ (para. 19). The Master awarded around £386,500 to the applicants jointly (to cover housing and childcare but not private schooling), out of a net estate valued at around £3.5 million (see also Re Robinson, outlined at 9.4.1).
p. 332↵By contrast, the courts have been particularly exercised by the problem of applications by adult children. The general attitude of the courts to such applications has been that proof of impoverished circumstances is not sufficient. For some years it was thought that unless the applicant could prove a moral obligation on the part of the parent to provide for him, or some special circumstances, the application would fail. In Re Coventry  2 WLR 853, Oliver J stated (at 856) that applications for maintenance by ‘able-bodied and comparatively young men in employment and able to maintain themselves must be relatively rare’ and need to be approached ‘with a degree of circumspection’. The deceased died intestate leaving a net estate of £7,000 which passed entirely to his elderly wife. She had left him many years before, and was living on a pension in a council flat. The applicant was their son, aged 46, who was working as a self-employed chauffeur and living in his parents’ home (in which the widow had a one third interest). The applicant was in difficult financial circumstances, part of his income being required for payment of maintenance to his wife following the breakdown of their marriage. His application failed; being a blood relation and in necessitous circumstances was insufficient to entitle him to any provision. Oliver J stated (at 864–5):
it always has to be borne in mind that the 1975 Act, so far as it relates to applicants other than spouses, is an Act whose purpose is limited to the provision of reasonable maintenance. It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the 1975 Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession … The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position … 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 a 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.
These remarks will be regretted by those who think that a person does owes some obligation to provide for his family after his death, whether adult children or not. Nevertheless, the decision in Re Coventry was entirely justifiable on the facts. A contest over a small estate between an able-bodied adult son in employment and his elderly mother living in difficult financial circumstances was, inevitably, no contest. Would it have made any difference if the estate had been large, or if the son had been the only surviving relative and the deceased had left the estate to charity? Not according to Oliver J—he made it clear that his decision did not depend on the priority of the mother’s needs but rather on the son’s failure to satisfy the court that he had any claim at all. The decision was confirmed on appeal: Re Coventry  Ch 461. It was argued on behalf of the son that Oliver J was mistaken in stating that a moral obligation was a precondition of a successful application by an adult child. However, this argument was rejected by Goff LJ who explained that Oliver J had not stated that a moral obligation was a prerequisite to success as a general rule, but simply that on the facts of Re Coventry the son needed to prove such an obligation in order to succeed.
p. 333↵This was frankly a somewhat unconvincing interpretation of the first instance decision, particularly as the necessity to show a moral obligation on the parent or some special reason for maintaining the child had been emphasized in cases before Re Coventry (such as Re Andrews  1 WLR 1105, Re Ducksbury  1 WLR 1226 and Millward v Shenton  1 WLR 711). Whatever the correct interpretation of Re Coventry, the case was for some time perceived as having decided—as a general rule—that adult children had to demonstrate a moral obligation on the parent to provide for them. In Re Jennings  Ch 286 Nourse LJ interpreted Re Coventry as establishing that an adult son in employment had to show some special circumstances—typically a moral obligation—in order to succeed (see also Re Abram  2 FLR 379). That the courts placed such emphasis on proof of moral obligation was surprising given that the legislation does not require (and never has) that any such obligation should be proved. Admittedly, under s. 3(1)(d) the court must consider ‘any obligations and responsibilities which the deceased had towards any applicant’ (see 184.108.40.206). But this is no more than a general directive to the court to take account of certain factors. It was not intended to be a statutory precondition for an application succeeding.
That was made clear in Re Hancock  2 FLR 346 (see A. Borkowski, ‘Re Hancock (Deceased) and Espinosa v Bourke: Moral Obligation and Family Provision’  CFLQ 305). Butler-Sloss LJ interpreted Re Coventry as not having insisted on proof of a moral obligation in all cases. Her Ladyship continued:
It is clear to me that the 1975 Act does not require, in an application under s. 1(1)(c), that an adult child (whether son or daughter) has in all cases to show moral obligation or other special circumstance. But on facts similar to those in Re Coventry and even more so with the comparatively affluent applicant in Re Jennings, if the facts disclose that the adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as moral obligation.
In Espinosa v Bourke  1 FLR 747, 762 Buxton LJ referred to the dictum as ‘the Hancock principle’ and as ‘a rule of thumb’ for cases involving applicants with earning capacity. The applicant in Re Hancock was a daughter, one of seven children to have survived the deceased. He devised a plot of land adjoining the M40 to the family business, which was carried on as a partnership by five of the children, but not by the applicant (she had left home at 19 in order to marry). The applicant received nothing under her father’s will. She was aged 71 and living in needy circumstances by the time her application was finally heard. At first instance the court ordered that she be paid periodical payments of £3,000 per year. This was not an unduly generous amount given the size of the estate (nearly a million pounds by the time of the hearing, largely due to the sale of the land adjoining the M40 to Tesco). Nevertheless, five of the other six siblings appealed on the ground that the deceased had not owed a moral obligation to provide for the applicant. The appeal was dismissed.
Although it is now clear that proof of moral obligation or other special circumstances is not a necessity, the presence of such factors greatly strengthens the applicant’s case. In Ilott v The Blue Cross  UKSC 17, Lord Hughes agreed that while p. 334↵a ‘moral claim’ (which seems synonymous with a ‘moral obligation’) is not a ‘sine qua non’, ‘the presence or absence of a moral claim will often be at the centre of the decision under the 1975 Act’ (para. 20), particularly in claims by adult children capable of living independently. There is ample demonstration in the case law as to what may constitute moral obligation or special circumstances. In Re Ducksbury  1 WLR 1226 the applicant succeeded principally because her attempts at reconciliation with her father—which he spurned—after his acrimonious divorce from her mother were held to give rise to a moral obligation on his part. In Millward v Shenton  1 WLR 711, CA, a son, who was unable to earn his own living by reason of illness and was entirely dependent on state assistance, succeeded in obtaining virtually the whole of his mother’s estate, worth about £3,000, which she had left to a cancer charity. In Re Debenham  1 FLR 404, the applicant was a daughter (aged 58) who was unemployed, epileptic, and dependent on state assistance. Her mother left her only £200 out of an estate valued at about £172,000 (the bulk of which was bequeathed to charity). There was some evidence that the applicant had been an unwanted child—she was brought up mostly by her grandparents. It was held that as the applicant was epileptic, any mother, however aloof, might have felt some obligation to help her. The court awarded the applicant a lump sum of £3,000 for immediate needs and an annuity of £4,500 for future needs. It was felt that a substantial capital payment was inappropriate because of the age and life expectancy of the applicant.
Then there are the ‘dutiful son’ cases: Re Abram  2 FLR 379 and Re Pearce  2 FLR 705. In Re Abram the testatrix left the bulk of her large estate to charity, excluding her son, her only child, from benefiting (she had previously made a will substantially in his favour). From the age of 17 he had worked in the family business—run by his mother—for minimal wages, but when he was 34 he left because he was unable to support his own family. It was then that his mother revoked her earlier will and disinherited him. Although they were later reconciled, she did not alter her later will. The son went into business but it failed. His application under the 1975 Act succeeded. The court found that there were special circumstances in this case which made the lack of provision for him by his mother unreasonable: he had worked for many years at a minimal wage for a business which he expected would one day be his, and he had then been forced to leave it mainly because of his mother’s treatment of him. The court ordered a settlement of half the estate for the son’s life. In Re Pearce the applicant son was awarded £85,000 out of an estate of some £285,000 (all of which the deceased had left to his former cohabitant). The son had worked for many years on the deceased’s farm without any pay from a very young age. The deceased had repeatedly told his son that he would inherit the farm when the deceased died. As we saw earlier (220.127.116.11), Lord Hughes appeared sympathetic to such ‘dutiful’ claimants in Ilott.
Could proprietary estoppel (see 10.2.5) have provided a solution in the above cases? It must have been argued in Re Pearce—since Re Basham  1 WLR 1498 was cited in argument—but the judgment does not refer to estoppel.
The moral obligation in Espinosa v Bourke consisted mainly in a promise given by the deceased to his dying wife that he would leave certain shares to their daughter (the shares were owned by the wife and were bequeathed by her to the deceased). The deceased later excluded the daughter from his will partly because she had shown ‘a degree of irresponsibility’, or so he stated. Certainly her fifth p. 335↵marriage— to a Spanish fisherman much younger than her—seemed to impact adversely on the amount of care she could give her elderly father (since she went to live in Spain for what proved to be the last year of his life). The Court of Appeal nevertheless regarded the promise given by the deceased as creating a weighty obligation which had not been discharged on the facts. The daughter was awarded £60,000 out of an estate valued at nearly £200,000. The case was likened in this respect to Re Goodchild  1 WLR 694, where the court found a moral obligation arising from the promises made by a couple when they were attempting to make mutual wills (see 18.104.22.168).
The high-watermark of claims by adult children might be said to be the Court of Appeal’s decision in Ilott v Mitson, albeit later overturned by the Supreme Court (sub nom Ilott v The Blue Cross). The claimant’s mother left an estate worth £486,000, which she left by will to various charities. The deceased had also written a letter of wishes in which she explained her decision to exclude her only daughter, Heather, from her will. Heather had left home at the age of 17, without her mother’s knowledge or agreement, in order to live with her future husband. The deceased clearly disapproved of her daughter’s choice of lifestyle. Heather and her husband had five children and lived in straitened financial circumstances. For example, Heather never went on holiday, found it difficult to afford clothes or a varied diet for the children, and possessed many items that were old or second-hand. Despite attempts at reconciliation, mother and daughter were estranged for some twenty-six years, and Heather was fully aware before her mother’s death that she was due to be excluded from the will. The Court of Appeal ( EWCA Civ 346) ultimately upheld the first instance judge’s decision that the will had failed to make reasonable financial provision for her, which he had made on the basis of needs, the estate’s size and the absence of other demands on it, and the mother’s conduct. In the Court of Appeal it was confirmed that necessitous circumstances alone were insufficient, but a fact-sensitive approach has to be taken to the s. 3 factors and any one of them may lead to a successful claim. Arden LJ considered it clear that ‘Parliament intended that an adult child should be able to bring a claim even if it was possible for him or her to subsist without making a claim’ (para. 72). Eventually, the Court of Appeal ( EWCA Civ 797) awarded Heather around £143,000 with an option on up to a further £20,000, which significantly increased the £50,000 award made at first instance. The Court of Appeal held that Judge Million had made two errors. First, he had said that the award should be ‘limited’ because of the applicant’s lack of expectation of provision and her ability to live within her current means, but wrongly omitted to explain ‘what the award might otherwise have been and to what extent it was limited by the matters in question’ (para. 35). The second alleged error was the judge’s failure to verify what effect his award would have on the applicant’s entitlement to state benefits, simply assuming that a large capital payment (even including the one he made) would disentitle the family to most if not all of their benefits. The award of around £163,000 was produced by the Court of Appeal exercising the discretion afresh, taking into account inter alia Heather’s straitened circumstances, her mother’s conduct, and the charities’ lack of expectation or human needs.
The Court of Appeal’s 2015 judgment caused a stir in some quarters (not least with the Comment Editor of the Daily Telegraph on 28 July 2015), and some construed it as an attack on the core principle of testamentary freedom. The p. 336↵decision nevertheless stopped very far short of introducing ‘forced heirship’. Throughout the life of the 1975 Act it has been a calculated risk to ‘disinherit’ children who might need maintenance in the future, and the deceased’s views and intentions have always been somewhat relevant to but obviously not conclusive of the appropriate level of provision. It is arguable, in fact, that Re Land (see 22.214.171.124) was by far a more dramatic case in which provision has been made for an adult child. Moreover, neither disapproval of lifestyle (Espinosa v Bourke) nor estrangement (Gold v Curtis  WTLR 673) inevitably prevented claims in previous cases.
The Supreme Court, however, held ( UKSC 17) that Judge Million had not made either of the errors alleged by the Court of Appeal. First, the Supreme Court opined that the Act required ‘a single assessment by the judge of what reasonable financial provision should be made in all the circumstances of the case’. It did not require the judge (as the Court of Appeal appeared to suggest) ‘to fix some hypothetical standard of reasonable provision and then either add to it, or discount from it, by percentage points or otherwise, for variable factors’ (para. 34). Judge Million was said to be perfectly entitled to take into account the relationship between the deceased and Heather. The two dominant factors in the case were the estrangement and Heather’s strained circumstances, and Lord Hughes even suggested that it would have been legitimate for the judge to have concluded that it was entirely reasonable for no provision to be made at all in the will because of the estrangement (not a matter under appeal). So he was definitely able to say that ‘what reasonable provision would be was coloured by the nature of the relationship between mother and daughter’ (para. 35). The Court of Appeal’s order, by contrast, had given ‘little if any weight’ to the length of the estrangement between the parties (para. 46).
The Supreme Court was also concerned that again ‘little if any weight’ had been given by the Court of Appeal’s order to the deceased’s very clear wishes (para. 46). It was incorrect to say that the charities’ lack of any expectation of benefit was on a par with Heather’s lack of any similar expectation (see further 126.96.36.199). The Supreme Court held (correctly, I would respectfully suggest) that the Court of Appeal had erred in implying that they were not prejudiced by a higher award to Heather because they could not plead human needs: clearly the benefit to an estate beneficiary is inherently reduced by an order under the 1975 Act. It was also held to be erroneous to suggest that the court did not need to give specific consideration to the deceased’s wishes because Parliament had limited claims under the 1975 Act to particular circumstances (a need for maintenance in the case of the applicant). Those wishes were relevant factors and fell to be considered alongside the others (see 188.8.131.52).
On the second suggested error, the allegation that the judge had been unaware of the effect of his order on Heather’s entitlement to benefits (see 184.108.40.206), the Supreme Court held that Judge Million had in fact addressed the impact on benefits. Lord Hughes regarded the essence of the Court of Appeal’s criticism to be that the judge’s order would have little or no value to Heather because of the impact on her benefits. But he held that if Heather spent the £50,000 in a particular way the impact on her benefits would be minimized. In fact, Lord Hughes suggested that the Court of Appeal had somewhat ironically given insufficient attention to the impact of its own order on Heather’s benefits position.
p. 337↵That was enough to dispose of the case: the £50,000 award met many of Heather’s needs for maintenance, allowing her to ‘buy much needed household goods and have a family holiday’ as Lady Hale put it (para. 66), and should be restored. But it has been seen (9.4.2 and 220.127.116.11 above) that Lady Hale gave a powerful supplementary judgment, criticizing the current state of the law for its failure to provide a clear answer to the question that the Supreme Court faced.
The end result in Ilott will be a relief for the charities concerned, who took a large financial and reputational risk in fighting the case all the way to the Supreme Court, which gave judgment well over 12 years after Mrs Jackson’s death. The charities did so largely on principle because of the possible wide impact of the Court of Appeal’s approach. The decision will also be welcomed by private client practitioners, who will generally want to assure their clients that the wills that they have been paid to advise on and draft will actually reflect what happens on the client’s death, as well as by those who support the idea that property rights extend to control on death and that able-bodied adult children should not be able to disrupt testamentary intentions.
Because it had previously refused permission to appeal the ‘first stage’ (see 9.4.1 and Figure 9.1), the Supreme Court was strictly concerned only with quantum, and there are hints that Heather was fortunate to receive anything. In Wellesley v Earl Cowley  EWHC 11 (Ch), for example, the claim was unsuccessful in the context of a thirty-five-year estrangement, caused by the applicant’s lifestyle and her rejection of her father’s ‘values’, despite a large estate and reliance on benefits (albeit that the applicant received a £20,000 legacy under her father’s will). For more detail on Ilott and its impact on subsequent judgments, see B. Sloan, ‘Ilott v The Blue Cross (2017): Testing the Limits of Testamentary Freedom’ in B. Sloan (ed), Landmark Cases in Succession Law (2019).
The position of adult children under the 1975 Act continues to be weak compared to that of spouses. Proof of moral obligation remains a crucial factor—if no longer a universal requirement—and the English courts take the view that the parent–child relationship does not in itself result in a moral obligation on the parent to provide for the child. Moreover, children have to overcome the hurdle of demonstrating a need for provision for their maintenance, in common with all applicants other than spouses. For a child to be in no better a position than, say, a former spouse or stepchild, will strike many as hard to justify (for a comparison between English and New Zealand law, see N. Peart and A. Borkowski, ‘Provision for Adult Children on Death—the Lesson from New Zealand’  CFLQ 333). This may be particularly true for children who have acted as informal carers but have difficulty in demonstrating a need for future maintenance (see, e.g., B. Sloan, ‘Testamentary Freedom and Caring Adult Offspring in England & Wales and Ireland’ in K. Boele-Woelki, J. Miles, and J. Scherpe (eds), The Future of Family Property in Europe (2011)). That said, the Law Commission, while inviting consultees’ views on whether and how adult children should be given a greater chance of success in claiming under an amended 1975 Act, expressed understandable concern that it would be ‘difficult to find a justification for doing so that was both clear, and consistent with the rest of the law’, particularly if the maintenance limitation were removed (C.P. 191, para. 5.19). No change was recommended, but in Ilott Lady Hale took the unusual step of expressing ‘regret that the Law Commission did not reconsider the fundamental principles underlying claims by adult children’ (para. 66). Reform may ultimately follow.
p. 338↵Meanwhile, s. 3(3) (as amended by the Inheritance and Trustees’ Powers Act 2014) requires additional factors to be considered in applications by children of the family. The court must have regard:
to whether the deceased maintained the applicant and, if so, to the length of time for which and basis on which the deceased did so, and to the extent of the contribution made by way of maintenance;
to whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant;
to whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the applicant was not his own child;
to the liability of any other person to maintain the applicant.
Section 3(3)(c) refers principally to the parents of the applicant: their liability to maintain the applicant is of obvious importance both in deciding whether reasonable provision has been made for the applicant and, if not, which order the court should make.
In the two leading cases on applications by children of the family under s. 1(1)(d)—Re Callaghan  Fam 1 and Re Leach  Ch. 226, CA—adult stepchildren succeeded (see 18.104.22.168). Paradoxically, it may be that stepchildren are more likely to succeed than the children of the deceased. This is because the applicant under s. 1(1)(d) must show that the deceased ‘treated’ him as a child of the family—that requires proof of conduct towards the stepchild from which a moral obligation or other special circumstances might be more easily inferred than in the case of a child (where there may be nothing beyond the ‘mere’ blood-tie).
Under s. 3(2A) of the 1975 Act—inserted by the Law Reform (Succession) Act 1995 and amended by the Civil Partnership Act—the court must consider in an application by a cohabitant under s. 1(1)(ba):
the age of the applicant and the length of the period during which the applicant lived as the husband or wife or civil partner of the deceased and in the same household as the deceased;
the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.
The increasing recognition given to the rights of cohabitants is demonstrated not only by the fact that cohabitants can apply—even if not maintained by the deceased—but also by the application of factors identical to those in the case of spouses (age, length of marriage, contribution to family welfare). But the standard of provision applicable is the maintenance standard, not the surviving spouse standard. In Baker v Baker  EWHC 937 (Ch) para. 66, it was doubted that it would make ‘any real difference’ whether the applicant succeeded as a cohabitant or a dependant. The Law Commission, however, opined that the maintenance standard had been ‘generously interpreted’ for cohabitants (C.P. 191, 2011, p. 339↵para. 274, citing the award of £540,000 out of a £2.2 million estate in Negus v Bahouse  EWCA Civ 1002), and there has been evidence of such generosity in some subsequent cases: see Banfield v Campbell  EWHC 1943 (Ch) (discussed at 22.214.171.124), Re Hodge  EWHC 688 (Ch) (discussed at 126.96.36.199), and arguably Lewis v Warner  EWCA Civ 2182 (also discussed at 188.8.131.52).
The fact that cohabitants are restricted to maintenance—whether as s. 1(1)(ba) or s. 1(1)(e) applicants, and even if generously interpreted—is arguably discriminatory compared to spouses or civil partners, even if it is unlikely to be a breach of Article 14 of the European Convention on Human Rights. The Law Commission provisionally recommended (C.P. 191, para. 4.134) the removal of the ‘maintenance’ limitation for cohabitants, but ultimately concluded that this was unworkable in the absence of inter vivos remedies for them that could be employed in the same manner as the divorce analogy (Law Com. No. 331, No. 8.159–8.165).
Section 3(4) provides that in an application by a dependant under s. 1(1)(e), the court must consider:
the length of time for which and basis on which the deceased maintained the applicant, and to the extent of the contribution made by way of maintenance;
whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant.
It will be recalled that what is now s. 3(4)(b) previously assumed significance in relation to whether the applicant was an eligible dependant in the first place, but that this should no longer be the case (see 184.108.40.206). Several of the reported quantum cases turning on s. 1(1)(e), such as Graham v Murphy  1 FLR 860 and Malone v Harrison  1 WLR 1353 (both discussed at 220.127.116.11), have concerned facts pre-dating the introduction of the specific category for cohabitants.
9.5 Anti-avoidance provisions
The anti-avoidance provisions of the 1975 Act were an innovation. There were no comparable provisions under the previous legislation. The deceased could avoid the 1938 Act by reducing his net estate through inter vivos dispositions or contracts binding his estate on his death. The Law Commission’s view (Law Com. No. 61, 1974, para. 191) was that it was ‘a matter of overriding importance to ensure that family provision laws are effective’, and this is consistent with the view reflected in the Matrimonial Causes Act 1973 concerning relief on divorce. The provisions enacted by the 1975 Act are concerned with dispositions and contracts intended to defeat an application for financial provision under the Act. For a comparison between the 1975 Act’s anti-avoidance provisions and other relevant ones, see B. Sloan, ‘Trusts and Anti-Avoidance under the Care Act 2014’  Conv 489. The Law Commission’s provisional proposal on mutual wills in Consultation Paper 231 (see 18.104.22.168 of this book) would have implications for the Act’s anti-avoidance provisions.
Under s. 10(2), the court can order the donee of a disposition by the deceased to provide, for the purpose of making provision under the Act, ‘such sum of money or other property as may be specified in the order’ (such property will then be regarded as ‘net estate’ under s. 25). For such an order to be made the court must be satisfied of the following:
that, less than six years before the date of the death of the deceased, the deceased with the intention of defeating an application for financial provision under this Act made a disposition, and
that full valuable consideration for that disposition was not given by the person to whom or for the benefit of whom the disposition was made (in this section referred to as ‘the donee’) or by any other person, and
that the exercise of the powers conferred by this section would facilitate the making of financial provision for the applicant under this Act.
22.214.171.124 Which provisions?
A disposition under s. 10 includes any payment of money (including payment of a premium under a policy of assurance); also any conveyance, assurance, gift of property, appointment (other than one made under a special power of appointment): s. 10(7). In Clifford v Tanner  EWCA Civ J0610-4;  CLY 3881, CA, the deceased transferred his own home to his daughter, who covenanted to allow him and his wife to live there for life. A few years later the deceased released his daughter from her covenant. It was held that the release was a disposition within s. 10. The benefit of the covenant was of obvious value; hence the release was a disposal of an asset, ‘a gift of property’. But ‘disposition’ in s. 10(7) does not include any provisions in a will, any statutory nomination, and any donatio mortis causa (but see s.11, considered in 9.5.2). No specific reference to mutual wills arrangements is made in the Act, but it is likely that full valuable consideration would be thought to have been given under such an arrangement in any event (see, e.g., S. Hudson and B. Sloan, ‘Testamentary Freedom: Mutual Wills Might Let You Down’ in W. Barr (ed), Modern Studies in Property Law—Volume 8 (2015) 173–5). The Law Commission have provisionally proposed that property subject to a mutual wills arrangement be expressly brought within the definition of ‘net estate’ for the purposes of the 1975 Act (see 126.96.36.199 and 188.8.131.52 of this book).
184.108.40.206 The required intention
What does ‘the intention of defeating an application for financial provision under this Act’ mean in s. 10(2)(a)? Suppose that Arthur makes inter vivos dispositions—intending to reduce his net estate and avoid his will being challenged—but he has never heard of the 1975 Act. Can he be said to have an intention of defeating an application under ‘this Act’? On a literal interpretation of s. 10(2)(a) it would seem that he could not have had the required intention; but that would be nonsensical because it would undermine the efficacy of the anti-avoidance measures (not all laypersons will know of the 1975 Act).
p. 341↵Fortunately, the courts have taken the sensible approach. In Re Kennedy  CLY 2820, it was held that it was not essential to show that the deceased knew of the provisions of the Act when he made a disposition. But there had to be evidence that he intended to defeat possible claims against his estate made after his death. In Re Dawkins  2 FLR 360, the testator left his wife £8,000 and a life interest in the matrimonial home. Some fifteen months before his death he transferred the home to his daughter for £100 (there was evidence that his relationship with his wife had deteriorated). His wife received nothing under his will as he died insolvent. The court ordered the daughter, who had raised £27,000 by selling the house, to pay the wife £10,000. The court was satisfied that the testator had an intention to defeat claims against his estate even if this was not the sole motive for the transfer of the house. For an even clearer case, see Hanbury v Hanbury  2 FLR 255, where the deceased systematically tried to reduce his assets so as to prevent a possible application by his disabled daughter.
220.127.116.11 Consideration and other matters
Full valuable consideration for the disposition must not have been given by the donee or any other person in order for s. 10 to apply. In Re Dawkins (see 18.104.22.168) it was considered—not surprisingly—that £100 was not full valuable consideration for a transfer of a house. Under s. 25(1), ‘valuable consideration’ does not include marriage or a promise of marriage. When the court decides whether and in what manner to exercise its powers under s. 10, it must consider ‘the circumstances in which any disposition was made and any valuable consideration which was given therefor, the relationship, if any, of the donee to the deceased, the conduct and financial resources of the donee and all the other circumstances of the case’: s. 10(6). Regarding the conduct of the donee, the court is presumably more likely to make an order under s. 10 where the donee’s conduct is questionable—for example, if he co-operates with the deceased’s attempts to evade the family provision legislation.
22.214.171.124 Position of the donee
Significantly, s. 10 ‘does not affect the validity of the disposition under attack’, since ‘[i]f relief is granted then it takes the form of a money judgment against the disponee to pay a specified sum to the estate’ (Dellal v Dellal  EWHC 907 (Fam), para. 9). The court can order the donee to provide such sum of money or other property as may be specified: s. 10(2). However, s. 10(3) and (4) afford the donee some protection: he cannot be ordered to provide more than the value of the money or the property he received under the disposition. Moreover, s. 10(5) allows a donee to challenge other dispositions made by the deceased. The court may then make orders relating to those dispositions provided that the requirements in s. 10(2) are satisfied.
9.5.2 Contracts: section 11
Before the 1975 Act, if a person made a contract to leave property by will, that created a contract debt in favour of the intended beneficiary of the contract, resulting in a reduction of the net estate. Section 11 changes the position. The court has power to direct the donee under the contract to provide such sum of money or other property as may be specified ‘if any money has been paid or any other property has been transferred to or for the benefit of the donee in accordance p. 342↵with the contract’: s. 11(2)(i). Moreover, if money or property has not been paid or transferred in accordance with the contract, the court may order the personal representatives not to make payment except such as may be specified: s. 11(2)(ii).
126.96.36.199 Requirements of section 11
The court may exercise its powers under s. 11 provided that it is satisfied of the following (s. 11(2)):
that the deceased made a contract by which he agreed to leave by his will a sum of money or other property to any person or by which he agreed that a sum of money or other property would be paid or transferred to any person out of his estate, and
that the deceased made that contract with the intention of defeating an application for financial provision under this Act, and
that when the contract was made full valuable consideration for that contract was not given or promised by the person with whom or for the benefit of whom the contract was made (in this section referred to as ‘the donee’) or by any other person, and
that the exercise of the powers conferred by this section would facilitate the making of financial provision for the applicant under this Act.
The required intention under s. 11(2)(b) is expressed identically to the provision regarding dispositions; thus it is certain that the interpretation of the requirement will be the same as in Re Kennedy, Re Dawkins, and Hanbury v Hanbury. But unlike the case with dispositions, the intention of defeating an application under the Act can be sometimes presumed in the case of contracts. If no valuable consideration was given or promised by any person for a contract, it shall be presumed (unless the contrary is shown) that the deceased made the contract with the intention of defeating an application: s. 12(2). A contract without valuable consideration is prima facie more dubious than a disposition made without consideration; hence the difference in the position regarding presumed intention.
In determining whether to exercise its powers under s. 11—and in what manner— the court must consider ‘the circumstances in which the contract was made, the relationship, if any, of the donee to the deceased, the conduct and financial resources of the donee and all the other circumstances of the case’: s. 11(4). The court can exercise its powers only to the extent that the value of the property given, or to be given, under the contract exceeds the value of any valuable consideration (the value of the property is that at the date of the hearing): s. 11(3).
188.8.131.52 No time limit
Unlike the case with dispositions, there is no time limit applicable to contracts. In theory s. 11 applies to any contracts, whenever made before the deceased’s death, provided that the requirements of s. 11(2) are satisfied. Why this difference between dispositions and contracts? The rationale was explained by the Law Commission (Law Com. No. 61, 1974, para. 237):
In the case of a disposition inter vivos, the donor is immediately divesting himself of property and this must in most cases have a restraining effect upon him. In the case of contracts of the kind with which we are concerned there is no similar disincentive, p. 343↵because the deceased remains in full enjoyment of his property during his lifetime. We think that any rule rendering such contracts immune from challenge if made more than a specified period before death might be a positive encouragement to make them. Accordingly we do not recommend any such rule.
Family provision is one of the most controversial areas of succession law. It brings into sharp focus the fundamental tension between testamentary freedom and the expectation that certain people will receive something from an estate. Whatever the criticisms of cases such as Ilott v The Blue Cross, the English 1975 Act is often significantly controlled by the ‘maintenance’ limitation, and English law in general gives more protection to testamentary freedom than jurisdictions reserving ‘compulsory portions’ for family members. The full implications of the decision in Ilott, and particularly Lady Hale’s calls for reform, may still take time to materialize.
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