Robinson v Fernsby & Anor, Court of Appeal - Civil Division, December 19, 2003,  EWCA Civ 1820
|Resolution Date:||December 19, 2003|
|Issuing Organization:||Civil Division|
|Actores:||Robinson v Fernsby & Anor|
Case No: A3/2003/0280Neutral Citation Number:  EWCA Civ 1820 IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE CHANCERY DIVISIONMR JUSTICE BLACKBURNERoyal Courts of JusticeStrand, London, WC2A 2LLDate: 19th December 2003Before :LORD JUSTICE PETER GIBSONLORD JUSTICE MAYand LORD JUSTICE MANCE- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Charles Holbech (instructed by Arbeid & Golstein) for the AppellantGerald Wilson (instructed by Hodge Jones & Allen) for the RespondentHearing dates : 16th/17th October 2003- - - - - - - - - - - - - - - - - - - - -JUDGMENT Lord Justice May: Introduction1. This is an appeal by the claimant, Venetia Robinson, against a decision and order of Blackburne J eventually handed down on 23rd January 2003. 2. The claimant is the daughter of Elizabeth Scott-Kilvert (``the deceased'') who died on 26th April 2000 aged 82. The deceased also had a son, Alexander Scott-Kilvert, who died on 31st March 1995. He had married Marie-Jose Scott-Kilvert (``Mme Scott-Kilvert'') in 1985. Their son, Duncan, was born on 5th February 1986. Duncan's parents separated when he was 6 years old in 1992, Alexander having become an alcoholic and a drug addict. Divorce proceedings were under way at the time of his death when he was aged only 47. Duncan was aged 9 when his father died. He lives with his mother in Carcassonne in France. Duncan is the third defendant and the respondent to this appeal. 3. The claimant's and Alexander's father was Ian Scott-Kilvert. He and the deceased divorced in 1966. The deceased never remarried. Ian Scott-Kilvert died on 8th October 1989. 4. The deceased executed a will on 8th January 1991 and subsequently made five codicils. The fifth of these was executed on 5th November 1995, seven months after Alexander's death. In the events which have occurred, by operation of the will and its five codicils, there were a number of pecuniary legacies and specific gifts amounting to about £12,000. The residue was divisible equally between the claimant and Duncan as Alexander's only son. The effect of the fifth codicil was to defer the gift of Alexander's half share of the residue to Duncan from the age of 18 to the age of 25. 5. In these proceedings, the claimant applied under section 1(1)(c) of the Inheritance (Provision for Family and Dependents) Act 1975 seeking reasonable financial provision out of her mother's estate. 6. The claimant was born on 24th December 1958. She unfortunately had a difficult and somewhat disturbed childhood during which she suffered severely from anorexia. She was admitted to hospital for this on no less than eleven occasions between 1974 and 1982. She was in hospital for a large part of 1978. Between 1974 and 1976 her weight was as low as 4½ stone. Her anorexia continued into her 20's. Her last hospital treatment was in 1988. The judge had medical evidence to the effect that her anorexia has been in remission since 1989. 7. As a result of her anorexia, her education was disrupted and she only attained four O Levels. It also resulted in her being unable to obtain any substantial employment. She has been and is unable to earn her own living. Since 1992, she has given occasional piano lessons to private pupils resulting in an annual income of about £650.8. Until 1988, the claimant had lived at home with her mother. The deceased then lived largely by herself at Orchard House, Milden near Ipswich. In late August 1996, she was suddenly admitted to West Suffolk hospital. After six weeks in hospital, she moved to Friars Hall Nursing Home in Hadleigh, Suffolk, where she remained until her death on 26th April 2000.9. On 24th September 1996, the deceased had executed an Enduring Power of Attorney appointing two solicitors as her attorneys. This was registered on 2nd January 1997. In August 1997, Orchard House was sold, the net proceeds of sale amounting to £205,306.25. On 1st May 1998, the attorneys applied to the Court of Protection for authority to make a lifetime gift to the claimant of these sale proceeds. There was a hearing of the application on 22nd September 1998, when the attorneys, the claimant, the deceased (through the Official Solicitor) and Duncan were all represented. After much debate, the court made an order authorising payment to the claimant of the £205,306.25 sale proceeds and, at the same time, the creation of a £25,000 settlement for Duncan. These payments were authorised on the basis that they were to be treated as advances made on account and in part payment of any share of the deceased's property to which the claimant and Duncan might become entitled under any will or intestacy. The £205,306 was paid to the claimant in March 1999, just over a year before the deceased died. 10. The net value of the deceased's undistributed estate as at 25th September 2002 was £361,507.47, consisting largely of cash on deposit. That amount was before deduction of administration expenses and any costs of these proceedings. Upon a working assumption for the moment that these and the payment of pecuniary legacies and gifts would reduce the residuary estate to £330,000, the operation of the will and its codicils would result in approximate additional payments to the claimant of £75,000 and to Duncan when he reaches the age of 25 of £255,000, taking account of the payments authorised by the Court of Protection. In these proceedings, the claimant applied for a greater proportion of the residuary estate.The Inheritance (Provision for Family and Dependants) Act 197511. Section 1 of the 1975 Act enables certain persons having a relationship with a person who dies domiciled in England and Wales to apply to the court for an order under section 2 of the Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or a combination of these, is not such as to make reasonable financial provision for the applicant. By section 1(1)(c), one such potential applicant is a child of the deceased. ``Reasonable financial provision'' is defined in sub-section 2 in the case of all applicants other than the husband or wife of the deceased to mean:``... such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.''This is a more restrictive definition than that which applies where an application is made by a husband or wife - see section 1(2)(a).12. Section 2 of the Act empowers the court, ``if it is satisfied that the disposition of the deceased's estate effected by his will ... is not such as to make reasonable financial provision for the applicant'', to make a variety of orders including an order for the payment to the applicant out of the estate of a lump sum of a specified amount.13. Section 3(1) of the Act provides:``Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, having regard to the following matters, that is to say -(a) the financial resources and financial needs which the applicant has, or is likely to have in the foreseeable future;(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;(e) the size and nature of the net estate of the deceased;(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.''14. Section 3(5) provides that, in considering the matters to which the court is required to have regard under section 3, the court has to take into account the facts as known to the court at the date of the hearing. Section 3(6) provides that, in considering any relevant person's financial resources, the court has to take into account his or her earning capacity; and that in considering the financial needs of any such person, the court has to take into account his or her financial obligations and responsibilities.The Law15. The judge considered these statutory provisions and discussed them in the light of a number of authorities. He said in paragraph 15 of his judgment:``It follows therefore that, on every application under the Act, the court is required to consider two questions. First, has reasonable provision been made for the applicant? Second, if not, what financial provision should the applicant receive?''He pointed out that, for applicants other than a husband or a wife, the purpose of the Act was limited to the provision of reasonable maintenance. It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. It has to be shown, not simply that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make greater provision for the applicant's maintenance. The judge referred here to the judgment of Oliver J in Re Coventry deceased  CH. 461 at...
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