2018 Estate Disputes Round Up Part 2: 1975 Act Claims

Taking a slightly longer view than the last 12 months, there have been a number of interesting 1975 Act decisions since the Supreme Court’s decision in Ilott v Mitson [2017] UKSC 17.

Whilst each case turns on its own facts, it is interesting to compare the decisions in Ball v Ball and in Nahajec v Fowleboth featuring adult child claimants, in which the need identified by the Supreme Court for the claimant to establish something more than a financial need and the relevant qualifying relationship has been considered. We also have a rare reported decision concerning the maintenance claims of minor children in Ubbi v Ubbi.

In Thompson v Ragget and Banfield v Campbell, the question of whether or not the housing needs of cohabitee claimants entitled to provision on the maintenance standard should be met by way of a life interest (as the Supreme Court has suggested) or outright provision has also been considered, with different conclusions being reached in each case.

 

Ball v Ball [2017] EWHC 1750 (Ch)

This was a claim for financial provision brought by three adult children who had been excluded from provision from their mother’s estate, following allegations of sexual abuse against their father. The defendants were the deceased’s eight other children and one grandchild, to whom she had left her estate.

Two of the children had made contemporaneous reports of the abuse at the time that it occurred in the ’60s and ’70s and the second claimant had been taken into care, although no police action was taken at the time. The judge found that Mrs Ball had been concerned to ask and did ask all her children whether they had allegations of a similar nature to make against their father and, thereafter considered the matter over.

Many years latter, following a family argument (about an unrelated matter), the claimant’s reported their father’s abuse to the police. Their father was prosecuted and in fact pleaded guilty in relation to some of the allegations. Other allegations were not pursued by the CPS.

Thereafter, both mother and father made wills which excluded the claimants. It appeared that Mrs Ball regarded the allegations as having been exaggerated and a letter to that effect was drafted by the solicitor who drew up their wills.

The following factual matters were considered relevant under s3 of the Act:

  • Financial circumstances and needs of the applicants and beneficiaries: Oddly, no one seemed to have put in evidence about this and no evidence was elicited about financial needs on the first day of trial. HHJ Matthews allowed the witnesses to be recalled on the second day to deal with this issue. The evidence was necessarily given somewhat on the hoof. The broad thrust of it was that none of the applicants was well off. Each of them were ‘getting by’, albeit in modest circumstances. However, it was clear that the claimants were certainly no worse off than the defendants who gave evidence, and on some measures better off. For example, two of the three claimants owned their own homes, even though one said he could not afford it any longer and was going to put it on the market; none of them had significant debts, though several of the defendants did; one of them had savings, though none of the defendants did.
  • Size of the estate: This was a small estate of c. £157,000. Divided 9 ways (in accordance with the will) the beneficiaries would receive £17,444 each. Divided 12 ways, if provision was to be made on that basis for the claimants, it they would receive about £13,083 each.
  • Obligations and responsibilities and other matters: All three of the claimants were ’emancipated’. They relied in particular on the factors in section 3(1)(d) and (g) of the Act, namely “any obligations and responsibilities which the deceased had towards any applicant for an order”, and “any other matter, including the conduct of … any other person, which in the circumstances of the case the court may consider relevant”. They argued that the testatrix owed an obligation to them because she cut them out of her will as a result of their having accused her husband, their father, of serious offences against them, some of which at least he admitted to.

Held

  • HHJ Matthews had regard to the judgment of Lord Hughes in Ilott v Mitson and in particular the following passages:
    • As to the need for “something more” than the qualifying relationship:

“20. [ … ] There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J [in Re Coventry] did not impose one. He meant no more, but no less, than that in the case of a claimant adult son well capable of living independently, something more than the qualifying relationship is needed to found a claim, and that in the case before him the additional something could only be a moral claim. That will be true of a number of cases. Clearly, the presence or absence of a moral claim will often be at the centre of the decision under the 1975 Act. [ … ]”

  • On the relevance of conduct and the relevance of estrangement:

“47. [ … ] Lastly, for the reasons adverted to above, it was not correct that so long and complete an estrangement was of little weight. The Court of Appeal suggested that this was so because (a) the claimant had not wished for the estrangement, (b) she had made a success of her life as a mother and home-maker and (c) it might well be that the estrangement was not really a matter of fault on either side, thus simply, in effect, a sad fact of family life. [ … ] These matters of conduct were not irrelevant, but 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.”

  • Applying these principles to the facts of the case, HHJ Matthews held:

“81. … ‘need’ so ascertained is not enough by itself to justify the court going on to make an order. It is not automatic. There must be something else. It may be a moral claim, or it may be some other circumstance. It may be that sexual abuse by the deceased could be that something else. I do not need so to decide, as that is not this case, though, as Etherton J said in Marks v Shafier, it also is undoubtedly to be taken into account. However, in my view sexual abuse by someone other than the deceased does not have the same impact, even though it too may be taken into account if thought relevant.

  1. In the present case, the (limited) evidence shows that none of the applicants is well off. Each of them is ‘getting by’, albeit in modest circumstances. Two of them have their own incomes from working. The third has a husband with a pension and two sons who pay for their keep, although a third (with a child) does not. She also will qualify for a state pension in due course. One of them has savings; none has any significant debts. All of the claimants could well do with a lump sum to advance them in life, but in my judgment none of them could be described as ‘below the breadline’ or in need of further income for their reasonable maintenance. On the evidence, the estate left by the deceased was not derived from assets left to her by her husband. I do not consider that the conduct of the deceased in reacting to their complaining to the police about her husband, their father, by making a will that did not benefit them creates any kind of moral obligation on her to compensate them by leaving a share of her estate to them. Nor does the abuse of them by her husband. She did not authorise or instigate or encourage such abuse.
  • Accordingly the claim was dismissed: “86. To sum up. This is a small estate, where the claims of the claimants based on their needs for maintenance are not significantly different from (indeed, may be less than) those of the actual beneficiaries of the estate, and the size of the estate means that it could hardly make a significant difference anyway. In my judgment, the deceased herself has done nothing to create any moral obligation towards the claimants. There are no other special circumstances that I can see. The result overall is that I am not persuaded on the evidence that the will of the testatrix has failed to make reasonable financial provision for the claimants’ maintenance…”

 

Nahajec v Fowle [2017] Lexis Citation 270

Nahajec is by comparison a more straightforward case than Ball v Ball. The deceased had fallen out with all three of his children and had left his entire estate, worth £265,000, to a friend, who himself was in somewhat difficult financial circumstances. The claimant, although employed, had limited financial means and wanted to improve her circumstances by training to be a veterinary nurse.

This was a decision of HHJ Saffman in the Leeds County Court.

The following factual matters were considered relevant under s3 of the Act:

  • Financial circumstances and needs of the applicant: Ms Nahajec was working part time as a retail assistance, but it was her aspiration to become a veterinary nurse and she was therefore undertaking some paid employment at a veterinary surgery and some unpaid work to gain the necessary experience. She had recently had time off work to be treated for cervical cancer. The treatment had been successful but had caused her financial difficulties. She had consequently built up some debt of about £6,000 and as a result of her repayments could not quite meet her income needs from her existing income. She proposed to undertake a course to qualify as a veterinary nurse. Her estimated costs associated with her study, including provision for a car and maintenance but making allowance for a student loan, were c. £59,000.
  • Financial circumstances and needs of the beneficiary: the defendant was 53 years old and was married without any dependant children. His wife did not work. He was the director of a plastering business, but his business had not been successful – in part because of the recession and he also said that he had neglected his work to look after the deceased who was very ill prior to his death. His evidence was that he earned c. £2,000 per month. He had experienced financial difficulties in the past and had accrued significant loans. He had received £264,000 from the estate and had used it to reduce his debts and his mortgage liability and to put some money into his company. There had been some extravagant expenditure (e.g. £18,000 spent on watches after the letter of claim had been received). He contended that he had no money to meet any award.
  • Obligations and responsibilities: It was not suggested by the defendant that the deceased owed him an obligation to leave him his estate, although there was evidence that he had provided support to the deceased during his illness. Ms Nahajec accepted that it was not unreasonable for the defendant to receive the bulk of the estate.
  • Size of the estate: This was a small estate of c. £264,000.
  • Other circumstances: A note had been left by the deceased stating that his children were of “sufficiently independent means not to require any provision from me” but objectively that was not accurate. The claimant had a genuine wish to become a veterinary nurse. She was not at fault for the estrangement with her father and had consistently tried to rekindle the relationship.

Held

  • The ‘something more’ than the qualifying relationship and financial need in this case was the fact that the claimant had consistently tried to rekindle her relationship with her ‘stubborn and intransigent’ father and was not responsible for the estrangement. She also had a genuine and not fanciful aspiration to qualify as a veterinary nurse and could evidence commitment to this career change.
  • She sought £59,000 from the estate to assist her in achieving this aim, but was awarded a very modest £30,000. Primarily the reason for the reduction appears to have been the need, in the judge’s view, to reflect the contingency that she would not complete her studies. Once her debts were cleared, the claimant would be able to meet her needs from her existing resources if she did not undertake the course.

 

Ubbi v Ubbi [2018] EWHC 1396 (ch)

In the course of his marriage, the deceased had two children as a result of an affair. Eventually, he had left the matrimonial home to live with his new partner and the children. He died suddenly without making any provision for the children, one aged 3 at the date of his death and the other 6 months.

The net value of his estate was £3.3 million. His last will left his entire estate to his wife, with whom he had one child aged over 18 but who had disabilities and was not living independently.

The parties were in agreement that any provision should be made on a clean break basis by way of lump sum. It was also agreed that a multiplier multiplicand methodology, using Ogden table 28 for each of the on-going costs to be incurred in raising the children, should be applied.

The dispute between the parties focused on the assessment of three heads of income need:

  • Housing need;
  • Childcare;
  • Education costs.

The mother, was comparatively well off herself (owning property and being employed as a pharmacist) and agreed that she would contribute 65% of her income to the costs of raising the children. It was contended for the children that a net sum of £848,105.78 was sought from the estate. The wife contended that nothing was due, since the contribution that the mother proposed to make outstripped the reasonable needs of the children.

Held (Master Karen Shuman)

  • The financial needs of a minor child are not elevated to a ‘first’ or ‘paramount’ consideration, as the Matrimonial Causes Act 1973 and the Children Act 1989 respectively provide. Needs must be considered in the round and each case determined on its own facts. Nonetheless, the fact that a claim is brought by a minor child is a vital part of the factual matrix.
  • Guidance may be taken from the Schedule 1 jurisdiction, but it is not determinative of the approach to be taken to 1975 Act claims.
  • Whether or not a child was born within or outside of a marriage is irrelevant. How a child was treated by the deceased may be relevant.
  • The purpose of 1975 Act awards is to provide for maintenance and whilst maintenance may be capitalised, the object is not to provide the child with a capital sum upon attaining majority.
  • Reference to research concerning the average costs of raising a child was not considered to be helpful. Reasonable maintenance is to be determined on the facts of the individual case.
  • In relation to the specific heads of income need:
    • Housing: Master Shuman assessed the children’s needs on the basis of suitable rental accommodation, instead of providing for the purchase of a property. The parties had produced property particulars and ultimately, Master Shuman considered that the children’s needs were for a four-bedroomed property until the eldest child attained independence, whereafter the family could downsize to a three bedroomed property. This was, as one would expect, the largest head of need yielding a capitalised income need of £701,950 (but still cheaper than purchasing in the area). A negative discount rate of -0.75% was adopted in determining the relevant multiplier.
    • Childcare: the mother’s claim that she needed the support of a professional nanny, rather than an ad hoc au pair was accepted. A ‘dose of reality’ was required. If the mother were to work the hours and earn the income at the level suggested by either party then she must have proper child care for the children. A capitalised sum of £234,234 was justified on this head of need and amounted to reasonable financial provision.
    • Education: the children’s maintenance needs should not include the costs of private education. There was no firm intention on the part of the deceased to privately educate the children. The income of the parties would have been insufficient to fund private education for both boys to university level, or certainly not without a significant reduction in their living standards.

 

Thompson v Ragget & Ors [2018] EWHC 688 (Ch)

Joan Thompson and Wynford Hodge had lived together for 42 years at the date of his death. Mr Hodge made no provision whatsoever for Ms Thompson from his estate, which had a net value of c. £1.5 million. He left his estate to his two tenants, Ms Evans and Mr Berisha, who had rented one of the farm properties on an assured shorthold tenancy since 2015.

Shortly before his death, Mr Hodge purchased a cottage, Elidyr Cottage, with a view to moving into it with Ms Thompson. They had never gone into occupation. He had gone into hospital, where he eventually died, and, after his death, Ms Thompson had gone into residential care. There was evidence that Ms Thompson could return to private accommodation, provided that an appropriate care package was put into place.

The following factual matters were considered relevant under s3 of the Act:

  • Financial needs and resources of the applicant: Ms Thompson had only very modest savings amounting to some £2,500 at the date of trial. Her only income consisted of state benefits and disability living allowance totalling £1,114 per month.
  • Financial needs and resources of the beneficiaries: Ms Evans and Mr Berisha were occupying a house on the estate on an assured shorthold tenancy and the surrounding 23 acres of land under a tenancy or licence. They were described as leading a ‘subsistence lifestyle’ on the land. Ms Evans worked part-time in a market garden business and cleaned, and Mr Berisha worked on the caravan site for a wage and grew flowers and vegetables. Even after deducting the provision that was sought for Ms Thompson, however, they would be very well provided for.
  • Obligations the deceased had towards any applicant or beneficiary: HHJ Jarman considered that there was a wide disparity between the obligations that Mr Hodge had towards Ms Tompson and those he had, if any, towards Ms Evans and Mr Berisha. He had made a number of earlier Wills in which he had acknowledged his financial obligations towards Ms Thompson and had made provision for her. His change of testamentary intentions had been motivated by preventing his assets from falling into the hands of Ms Thompson’s children. He had acknowledged in his letter of wishes that one of his main responsibilities was as her carer. Whilst he was justified in saying she would not be able to live independently, he did not appear to have considered that she would have been able to live in her own home with an appropriate care package. His assertion that she was financially comfortable was not a fair reflection of her financial circumstances. The savings that she had then and now did not justify the lack of provision. His views towards her children were further an insufficient reason for leaving her without any provision. He had assumed little if any responsibility to Ms Evans and Mr Berisha, in comparison. They had assisted with works to the property they lived in and to Elidyr Cottage and Mr Berisha had begun working in the caravan part. Their relationship with Mr Hodge was described by Ms Evans as being ‘of mutual benefit’. If there was any assumption of responsibility towards them, it was very small.
  • Size and nature of the estate: The estate was sizeable and comprised a number of properties, including Penffordd occupied by Ms Evans and Mr Berisha and Elidyr Cottage.
  • Disability of any applicant or beneficiary: Ms Thompson had significant health and care needs, which were the subject of expert evidence. The expert considered that Ms Thompson could return to Elidyr Cottage, with care from her son, Dean, and his wife, or professional carers. There was evidence from Ms Thompson’s GP that it would be beneficial for her to leave residential care and to live in private accommodation with an appropriate social care package, to avoid becoming ‘institutionalised’.
  • Any other relevant matters, including conduct: The only issue under this head was a letter of wishes expressing the view that Mr Hodge did not want Ms Thompson’s children to benefit from any provision made for her, which in HHJ Jarman did not consider offered sufficient reason for leaving Ms Thompson without provision.
  • Age of the applicant, length of cohabitation and contributions made by the applicant to the family: Ms Thompson was 79 years of age at the date of trial and this had been a lengthy cohabitation of 42 years’ duration. In the course of the relationship, Ms Thompson had worked on the farm and associated caravan site business without pay. She had cared for Mr Hodge’s mother in her final years of her life. Her contributions were described as ‘substantial’.
  • Dependancy: Since Ms Thompson had a claim as a dependant of Mr Hodge, HHJ Jarman also had regard to the length of time for which and basis on which Mr Hodge maintained her, and to the extent of his contribution made by way of maintenance and the extent to which Mr Hodge had assumed responsibility for her maintenance.

There was no dispute that Mr Hodge had failed to make reasonable financial provision for Ms Thompson. The issue between the parties focused on what that provision should be and whether or not it should be on a life interest basis or by way of an outright award of capital. It was argued for Ms Thompson that it would be reasonable to transfer Elidyr Cottage to her to live in plus a sum for the costs of adaptation works and capitalised maintenance. It was proposed for Ms Evans and Mr Berisha that the property that they occupied and the surrounding land should be transferred to them outright and that Ms Thompson should have a life interest in the remainder, but that she should not return to occupy any of the estate properties as they were not fit for her occupation. Alternatively, if Elidyr Cottage was to be transferred to her, it should be on a life interest basis.

Held

  • HHJ Jarman concluded that Ms Thompson’s accommodation needs should be met by Elidyr Cottage, given that it was purchased for that purpose and further that Ms Tompson had friends living on the caravan park and nearby.
  • As to As to the question of whether or not Elidyr Cottage should be transferred to her outright, or merely on a life interest basis with a power to advance capital if required, HHJ Jarman concluded:

“36. The issue then arises as to whether Elidyr Cottage should be transferred to her outright, or by virtue of a life interest with power of advancement. In Illot v The Blue Cross and others [2017] UKSC 17, [2017] 2 WLR 979, the Supreme Court dealt with a claim under the Act by an adult child in which it emphasised that the statutory power is to provide maintenance, not to confer capital. Lord Hughes, with whom the other Justices agreed, referred at paragraph 15 to a decision of Munby J, as he then was, in In re Myers [2005] WTLR 851, which concerned a similar claim by an adult child. The award was not of an outright capital sum but of a life interest together with power of advancement designed to cater for the possibility of care expenses in advanced old age. Lord Hughes observed that “If housing is provided by way of maintenance, it is to be provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.”

  1. Mr Troup referred me to cases where cohabitees have been awarded an outright transfer of property to cater for accommodation needs. In Negus v Bahouse [2007] EWHC 2628 (Ch) His Honour Judge Roger Kaye QC sitting as a judge of the High Court, awarded a flat to the cohabitee of the deceased on the basis that a clean break was needed from an antagonistic situation with the deceased’s family. His Honour Judge Behrens QC, also sitting as a judge of the High Court, took a similar approach for similar reasons in Webster v Webster [2009] 1FLR 1240, [2008] EWHC 31 (Ch). At paragraph 41, the judge also relied upon the long period of cohabitation, the problems which might arise with improvements and repairs if only a life interest were granted, and the possibility of the cohabitee wishing to raise money on the property. Such an approach was approved by the Court of Appeal in another case, Musa v Holliday [2012] EWCA Civ 1268. Unsurprisingly, it was not thought necessary to cite these authorities to the Supreme Court in Illot.
  2. There is not the same degree of antagonism in this case, certainly not between Ms Evans and Mr Berisha on the one hand and Mrs Thompson on the other, although it is likely that this litigation has had an adverse effect on the relationship. It was Mr Hodge who mostly had dealings with the former. However, it is evident from the witness statements of Ms Evans and Mr Berisha that they have adopted Mr Hodge’s aversion to Dean receiving anything from the estate. This is reflected in the offer made, which was expressly on the basis that neither Mrs Thompson or her family should have anything to do with the estate.
  3. Given the very long period of cohabitation, and given that that it is Dean and his wife who will be providing the care for his mother at the cottage, in my judgment it is reasonable to provide for her maintenance accommodation in which Ms Evans and Mr Berisha have no interest. They will still be neighbours, but that is a different matter. Such an approach is likely to facilitate all concerned moving on from this litigation. Mrs Thompson will be able take decisions relating to her home, such as making structural alterations or raising money without the need to seek permission.”
  • Accordingly, Mrs Thompson was awarded the cottage outright together with a capital lump sum of £28,844.68, to pay for adaptations to make the property suitable for her needs, and an additional lump sum of £160,000 by way of a Duxbury award to provide her an estimated annual income of c. £23,000 per annum for the remainder of her life.

 

Banfield v Campbell [2018] EWHC 1943 (Ch)

Mr Banfield and Mrs Campbell had been in a relationship for about 20 years and cohabited for about 14 years, before her death. She left Mr Banfield the sum of £5,000 referring to him as her “friend”, and otherwise left the entire estate to her son, James (who was 35 years of age at the date of trial).

Much of the trial appeared to have been taken up with exploring the nature of the relationship between Mr Banfield and Mrs Campbell and dealing with the question of whether or not they were a cohabiting couple or, as James suggested, lodger and landlady. The relationship between Mr Banfield and Mrs Campbell appeared to have been somewhat irascible. He had a number of health problems and she complained about having to wait on him “hand and foot”. By the date of her death, he had taken to sleeping in a reclining chair in a room downstairs. Nonetheless, when friends of Mrs Campbell suggest she should end the relationship, she would say that she didn’t want to be on her own and wanted the companionship and they were going away on holiday together when she died.

Section 3 factors:

  • Financial needs and resources of the applicant: Mr Banfield had income of c. £30,000 and capital of c. £277,000. The greater part of his capital was held in an income producing bond, although it was possible for him encash this and his income would still exceed his expenditure.
  • Financial needs and resources of James: James was earning c. £40,000 net and lived in a property owned by his fiancé’s mother. He owned an investment property, although there was evidence that he owed a soft loan to his uncle in respect of the funds used to purchase it.
  • Obligations the deceased had towards any applicant or beneficiary: Mrs Campbell owed an obligation to Mr Banfield limited to making reasonable financial provision for his maintenance. It was relevant to note that Mrs Campbell had owned the property, which was the main asset of the estate, mortgage free before meeting Mr Banfield and that she had inherited it from her late husband. She owed the obligations towards James of a parent to a young adult child who had lost his father at an early age.
  • Size and nature of the estate: the net estate was in the region of £725,000 and in practical terms consisted almost entirely of the property
  • Disability of any applicant or beneficiary: Mr Banfield was in receipt of Disability Living Allowance and has a disabled Blue Badge. He walks with the aid of a crutch and finds stairs difficult but not impossible to climb.
  • Any other relevant matters, including conduct: Regard was had to the fact that Mr Banfield had lived rent free at the property for a period of two years.
  • Age of the applicant, length of cohabitation and contributions made by the applicant to the family: Mr Banfield was 66. He and the Deceased had lived together for about 14 years before she died. They kept their finances entirely separate and Mrs Campbell had been responsible for the majority of the household expenditure. Mr Banfield had contributed more after the death of his mother and receipt of an inheritance from her.

The crux of the case was the issue of how to meet Mr Banfield’s housing needs. It was argued on behalf of James that Mr Banfield had sufficient income and capital to enable him to rent or to purchase an over 60’s one-bedroom property and that therefore he did not require provision from the net estate or, alternatively, that he required only a small capital sum of £100,000 at most.

Held (Master Teverson)

  • Master Teverson did not consider that £5,000 amounted to reasonable provision: the length of the relationship between the Deceased and Mr Banfield ought to be recognised as tending to lead towards more generous provision for maintenance.
  • As to how accommodation needs should be met, he held as follows:
  1. I do not think it reasonable to proceed on the basis that Mr Banfield’s accommodation needs will be met through the private rental market. I recognise that for many, especially for younger people, renting is the only or preferred option. Mr Banfield is aged 66 and has significant physical restrictions and disability. I do not think he should be left needing to rent in the private rental market with the possibility of having to relocate at the end of each fixed term tenancy. Mr Banfield has specific housing needs and there is no certainty that they would be capable of being met in the private rental market as and when a tenancy expired.
  2. It is suggested in the alternative that Mr Banfield could buy a one-bedroomed flat for the over-55s or over- 60’s in the local area for around £200,000 either without any contribution from the estate or with only a limited capital contribution of £100,000 at most. These are retirement properties on over-55s or over-60’s leases which last only for the lifetime of the lessee.
  3. The fact that Mr Banfield is eligible to purchase a property for the over 60’s does not in my view mean that he should be required to do so. The capital employed in purchasing a lease of this type, whether coming from Mr Banfield or from the estate, or from a combination of both, would be lost on Mr Banfield’s death.
  4. In my view, Mr Banfield should not be required to invest his capital into a lease of this type and I doubt very much whether it in the estate’s interest to do so either. Mr Banfield does not at this stage wish to live in warden-assisted accommodation and would prefer to have a conventional one or two-bedroomed In my view, depending on cost and availability those are reasonable requirements.
  • As to the question of whether or not provision should be made by way of an outright award of capital or a lump sum, he held:
  1. I do not however, weighing all the section 3 factors, consider that the estate should be required to pay out as a lump sum an amount in the region of £350,000 to £450,000 to purchase such accommodation to be owned outright by Mr Banfield. In my view this is a clear case in which that would go beyond maintenance provision and be excessive capital provision. It would involve Mr Banfield receiving 50% or more of the capital of the net estate.
  2. As confirmed in Ilott, it is not the purpose of an award of maintenance under the Act to confer capital on the claimant. The relationship between Mr Banfield and the Deceased did not bear any children. There is no reason why the estate should provide Mr Banfield with a property to pass on to his relations.
  3. As conferring capital is not the purpose of an award of maintenance under the Act, it was stated by Lord Hughes JSC in Ilott that if housing is provided by way of maintenance, “it is likely more often than not”to be provided by way of a life interest rather than by way of a capital sum.
  4. There will be cases in which provision by way of a lump sum for housing is appropriate and can be justified as maintenance in the form of relieving the Claimant from a liability to pay rent. Each case will depend on its particular facts and a review of the section 3 factors. It is less likely in my view to be appropriate where, as here, the deceased had a child by an earlier marriage or relationship to whom she wanted and reasonably expected to be able to pass on capital to provide or support a start in life. A particular feature of the present case is that the property forming the main asset of the estate was a pre-owned asset owned and inherited by the Deceased before the start of her relationship with Mr Banfield.
  5. A further factor in the present case pointing away from the award of a lump sum to purchase a property outright are that the housing requirements of the Claimant are ones that are relatively expensive to meet on his case. I accept the approach of the Defendant to that extent. I accept that where a lump sum is sought involving 50% or more of the estate it is much more likely to be appropriate to make provision for housing by way of a life interest to avoid conferring capital and to avoid depriving the Defendant of capital which would otherwise pass to him.
  • The correct outcome was therefore to order a sale of the property and to grant Mr Mr Banfield a life interest in one half of the net proceeds of sale, to be used towards providing alternative accommodation for him. It would be open to Mr Banfield to contribute capital of his own towards the purchase, if he wished, in which case it would need to be agreed and declared in what proportions as between him and the estate or the defendant the property was owned. A sum of £20,000 should further be retained in the estate in case the property needed adaptation in the future.

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