Financial provision claim by adult child – Miles v. Shearer [2021]

Posted on by

·       Statutory framework – NB s.3(1)(g) [which includes reasons for disinheriting an adult child].

·       Illot v. Blue Cross [2017] UKSC 17 – ‘There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act and Oliver J 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’ [Lord Hughes]; ‘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’ [Lady Hale].

·       Miles v Shearer [2021] EWHC 1000 (Ch) – Obligations or responsibilities towards claimants at the time of T’s death? None. Claim failed.

Therefore prima facie, a claim under s.1(c) will fail if absent any other ‘moral’ claim, it is outweighed by other factors under s.3(1)(g), i.e. where the judge finds that the deceased parent did not in fact owe any obligation or responsibility to the adult child claimant at the date of his death.

The merits of each case depend up the making of a value judgement by the judge on the known facts. 

The litigation risk is that the law, gives no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance.

The unknown evidential factor is the recognition of a ‘moral’ claim,
however that is characterised, by the judge.


See also: See also: Priya-Tromans-Beware-of-issuing-‘hopeless’-Inheritance-claims-in-expectation-of-settlement.pdf (stiveschambers.co.uk)

That is why it is always better to mediate these cases rather than litigate them through the courts. 

Zoom Mediator – Contentious Probate & Trust Disputes: Zoom Mediator – Contentious Probate & Trust Disputes – Carl Islam

Statutory framework

The Inheritance (Provision for Family and Dependants) Act 1975 (the ‘Inheritance Act’) provides:

‘1     Application for financial provision from deceased’s estate.

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

(c)    a child of the deceased;

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

(b)    in the case of any other application made by virtue of subsection (1) above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

3      Matters to which court is to have regard in exercising powers under s. 2.

(1)    Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a)    the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)    the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)    the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)    any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)    the size and nature of the net estate of the deceased;

(f)     any physical or mental disability of any applicant for an order under the said section 2 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.

(3)    Without prejudice to the generality of paragraph (g) of subsection (1) above, where an application for an order under section 2 of this Act is made by virtue of section 1(1)(c) or 1(1)(d) of this Act, the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to the manner in which the applicant was being or in which he might expect to be educated or trained, …

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

(6)    In considering the financial resources of any person for the purposes of this section the court shall take into account his earning capacity and in considering the financial needs of any person for the purposes of this section the court shall take into account his financial obligations and responsibilities.’

Illot v. Blue Cross [2017] UKSC

Lord Hughes stated:

’12.      The concept of “reasonable financial provision” is thus, by the closing words of section 1(1), made central to the jurisdiction to depart from the will or intestacy rules, as the case may be. … In the case of all other applicants, however, section 1(2)(b) makes clear that reasonable financial provision means such provision as it would be reasonable for the applicant to receive for maintenance.

13.          This limitation to maintenance provision represents a deliberate legislative choice and is important. Historically, when family provision was first introduced by the 1938 Act, all claims, including those of surviving unseparated spouses, were thus limited. That demonstrates the significance attached by English law to testamentary freedom. The change to the test in the case of surviving unseparated spouses was made by the 1975 Act, following a consultation and reports by the Law Commission: Law Com No 52, [1973] EWLC 52 (22 May 1973) and Law Com No 61, [1974] EWLC 61 (31 July 1974). The latter report made it clear that the recommendation was designed not to introduce, even in the case of surviving present spouses, a general power to re-write the testator’s will, but rather to bring provision for such spouses into line with the developing approach of the family court. That court had by then relatively recently acquired expanded powers to make lump sum and property adjustment orders, which were not limited to maintenance provision but increasingly recognised other factors such as the length of the marriage, the contributions to the family and so on (see section 25 Matrimonial Causes Act 1973). The mischief to which the change was directed was the risk of a surviving spouse finding herself in a worse position than if the marriage had ended by divorce rather than by death. For claims by persons other than spouses the maintenance limitation was to remain, and has done so. See in particular paras 14, 16, 19 and 24.

14.           The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living. In re Jennings, deceased [1994] Ch 286 was an example of a case where no need for maintenance existed. The claimant was a married adult son living with his family in comfortable circumstances, on a good income from two businesses. The proposition that it would be reasonable provision for his maintenance to pay off his mortgage was, correctly, firmly rejected – see in particular at 298F. The summary of Browne-Wilkinson J in In re Dennis, deceased [1981] 2 All ER 140 at 145-146 is helpful and has often been cited with approval:

“The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry (deceased) … [1980] Ch 461. In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in In re Christie (deceased) … [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word ‘maintenance’ is not as wide as that. The court has, up until now, declined to define the exact meaning of the word ‘maintenance’ and I am certainly not going to depart from that approach. But in my judgment 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 does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable a him to continue to carry on a profit-making business or profession may well be for his maintenance.”

Thus in that case a claim against a large estate by an adult son failed when it was put as a claim for a capital sum to meet the capital transfer tax payable on a sizeable gift made to the claimant by the deceased during his lifetime, which gift the former had wasted away. The judge made the assumption, perhaps generously to the claimant, that bankruptcy would be likely if such a legacy were not directed, but that did not make the suggested sum provision for maintenance; the claimant was well able to work, despite a chequered history of drifting from occupation to occupation, and even if bankrupt was well capable of maintaining himself.

15.            The level at which maintenance may be provided for is clearly flexible and falls to be assessed on the facts of each case. It is not limited to subsistence level. Nor, although maintenance is by definition the provision of income rather than capital, need it necessarily be provided for by way of periodical payments, for example under a trust. It will very often be more appropriate, as well as cheaper and more convenient for other beneficiaries and for executors, if income is provided by way of a lump sum from which both income and capital can be drawn over the years, for example on the Duxbury model familiar to family lawyers (see Duxbury v Duxbury (Note) [1992] Fam 62). Lump sum orders are expressly provided for by section 2(1)(b). There may be other cases appropriate for lump sums; the provision of a vehicle to enable the claimant to get to work might be one example and, as will be seen, the present case affords another. As Browne-Wilkinson J envisaged (obiter) in In re Dennis (above) there is no reason why the provision of housing should not be maintenance in some cases; families have for generations provided for the maintenance of relatives, and indeed for others such as former employees, by housing them. But it is necessary to remember that the statutory power is to provide for maintenance, not to confer capital on the claimant. Munby J (as he then was) rightly made this point clear in In re Myers [2004] EWHC 1944 (Fam); [2005] WTLR 851 at paras 89-90 and 99-101. He ordered, from a very large estate, provision which included housing, but he did so by way not of an outright capital sum but of a life interest in a trust fund together with power of advancement designed to cater for the possibility of care expenses in advanced old age. If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.

16.           The condition for making an order under the 1975 Act is that the will, or the intestacy regime, as the case may be, does not “make reasonable financial provision” for the claimant (section 1(1)). Reasonable financial provision is, by section 1(2), what it is “reasonable for [the claimant] to receive”, either for maintenance or without that limitation according to the class of claimant. These are words of objective standard of financial provision, to be determined by the court. The Act does not say that the court may make an order when it judges that the deceased acted unreasonably. That too would be an objective judgment, but it would not be the one required by the Act.

17.           Nevertheless, the reasonableness of the deceased’s decisions are undoubtedly capable of being a factor for consideration within section 3(1)(g), and sometimes section 3(1)(d). Moreover, there may not always be a significant difference in outcome between applying the correct test contained in the Act, and asking the wrong question whether the deceased acted reasonably. If the will does not make reasonable financial provision for the claimant, it may often be because the deceased acted unreasonably in failing to make it. For this reason it is very easy to slip into the error of applying the wrong test. It is necessary for courts to be alert to the danger, because the two tests will by no means invariably arrive at the same answer. The deceased may have acted reasonably at the time that his will was made, but the circumstances of the claimant may have altered, for example by supervening chronic illness or incapacity, and the deceased may have been unaware of the full circumstances, or unable to make a new will in time. In re Hancock, deceased [1998] 2 FLR 346 illustrates another possibility. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a development value six times its probate assessment, and, that being the case, there was a failure to make reasonable provision for another daughter who was in straitened circumstances. Thus there can be a failure to make reasonable financial provision when the deceased’s conduct cannot be said to be unreasonable. The converse situation is still clearer. The deceased may have acted unreasonably, indeed spitefully, towards a claimant, but it may not follow that his dispositions fail to make reasonable financial provision for that claimant, especially (but not only) if the latter is one whose potential claim is limited to maintenance. In In re Jennings, for example, the deceased had unreasonably failed, throughout the minority of his son, the claimant, to discharge his maintenance obligations towards him. Many might say, as indeed the trial judge did, that this failure imposed an obligation on the deceased belatedly to provide for his son. But by the time of his death many years later the son had made his own successful way in the world and stood in no need of maintenance; his claim accordingly failed, correctly, in the Court of Appeal.

18.            The right test was well set out by Oliver J in In re Coventry [1980] Ch 461 at 474-475 in a passage which has often been cited with approval since:

“It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the 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. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not 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 any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. 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.”

19.           Next, all cases which are limited to maintenance, and many others also, will turn largely upon the asserted needs of the claimant. It is important to put the matter of needs in its correct place. For current spouses and civil partners (section 1(2)(a) and (aa)), need is not the measure of reasonable provision, but if it exists will clearly be very relevant. For all other claimants, need (for maintenance rather than for anything else, and judged not by subsistence levels but by the standard appropriate to the circumstances) is a necessary but not a sufficient condition for an order. Need, plus the relevant relationship to qualify the claimant, is not always enough. In In re Coventry the passage cited above was followed almost immediately by another much-cited observation of Oliver J:

“It cannot be enough to say ‘here is a son of the deceased; he is in necessitous circumstances; there is property of the deceased which could be made available to assist him but which is not available if the deceased’s dispositions stand; therefore those dispositions do not make reasonable provision for the applicant.’ 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.”

20.            Oliver J’s reference to moral claim must be understood as explained by the Court of Appeal in both In re Coventry itself and subsequently in In re Hancock, where the judge had held that there was no moral claim on the part of the claimant daughter. There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J 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.

21.           Oliver J’s reference to necessitous circumstances not by themselves always being sufficient is illustrated by Cameron v Treasury Solicitor [1996] 2 FLR 716. The claimant was the former wife of the deceased. She had been divorced from him 19 years before his death and their matrimonial finances had been settled by a lump sum paid to her as a clean break. There had been no financial relationship between them for the next 19 years, although they had remained in touch. The fact that she was in necessitous circumstances was held not to create any obligation on him to provide for her from his estate; that there was no other claimant and his small estate passed as bona vacantia to the Crown did not alter the fact that their personal and financial relationship was long in the past. Thus cases of long estrangement may, according to the judge’s assessment of the particular facts, be an example of the proposition that needs are not always enough to justify a claim under the Act. In most cases of clean break matrimonial settlement, the family court order will these days incorporate, as often as not by consent, a direction under section 15 that neither spouse shall be entitled to make any claim under the 1975 Act from the estate of the other.

22.            Nor, if the conclusion is that reasonable financial provision has not been made, are needs necessarily the measure of the order which ought to be made. It is obvious that the competing claims of others may inhibit the practicability of wholly meeting the needs of the claimant, however reasonable. It may be less obvious, but is also true, that the circumstances of the relationship between the deceased and the claimant may affect what is the just order to make. Sometimes the relationship will have been such that the only reasonable provision is the maximum which the estate can afford; in other situations, the provision which it is reasonable to make will, because of the distance of the relationship, or perhaps because of the conduct of one or other of the parties, be to meet only part of the needs of the claimant.’

Lady Hale (with whom Lord Kerr and Lord Wilson agreed) stated:

‘60.   The only guidance the court is given is: (1) the threshold question is whether the estate makes reasonable financial provision for the applicant; (2) if it does not, the actual provision to be ordered is limited to what is reasonable for the claimant’s maintenance (unless the applicant is a spouse or civil partner); and (3) that in deciding both of those questions, the court has to have regard to the matters listed in section 3 (see para 11 above). These look at the actual and foreseeable financial resources and needs of the applicant, any other applicant and any beneficiary; the obligations and responsibilities of the deceased towards any applicant or beneficiary; the size and nature of the estate; any physical or mental disability of any applicant or beneficiary; and any other matter, including the conduct of the applicant or any other person, which the court may consider relevant. In the case of children, the court must also consider the manner in which the claimant has been, is being or might be expected to be educated or trained. Section 1(7) of the 1938 Act, requiring the court to have regard to any reasons given by the deceased for making or not making the dispositions in his will, has been repealed: the reasonableness or otherwise of the testator’s dispositions [and NB not T’s decision] was to be tested objectively; the Commission agreed with Michael Albery that if the testator’s reasons were “good and founded on fact” they would be relevant under “other matters”, so there was no need to mention them separately (para 3.23).

61.     As Black LJ wisely observed when this case first came before the Court of Appeal: [2011] EWCA Civ 346; [2011] 2 FCR 1, para 88:

“A dispassionate study of each of the matters set out in section 3(1) will not provide the answer to the question whether the will makes reasonable financial provision for the applicant, no matter how thorough and careful it is. … [S]ection 3 provides no guidance about the relative importance to be attached to each of the relevant criteria. So between the dispassionate study and the answer to the first question lies the value judgment to which the authorities have referred. It seems to me that the jurisprudence reveals a struggle to articulate, for the benefit of the parties in the particular case and of practitioners, how that value judgment has been, or should be, made on a given set of facts.” [This is a litigation risk in an Inheritance Act Claim]

62.    How then is the court to “distinguish between the deserving and the undeserving”? It might be thought, for example, that in the case of a large estate consisting mostly of inherited property, the children ought to inherit even if they are not in need. But that would run counter to the restriction of their claims to reasonable maintenance. It would also run counter to the approach long taken in the law of inter vivos financial provision for adult children. Thus in Lord Lilford v Glynn [1979] 1 WLR 78, the judge had ordered a father, in addition to making periodical payments and providing for his daughters’ education, to make an immediate settlement upon them of £25,000 (a not inconsiderable sum in those days). The Court of Appeal held that “a father – even the richest father – ought not to be regarded as under ‘financial obligations [or] responsibilities’ to provide funds for the purpose of such settlements as are envisaged in this case on children who are under no disability and whose maintenance and education is secure” (p 85). That, of course, was a value judgment which may or may not have been based on a view that such provision ought to be “earned”. But it could be justified under the Matrimonial Causes Act 1973, because it contains age limits on the provision which may be ordered for children unless they are disabled, with the obvious aim of seeing them into adulthood and beyond that only to the end of their education. The 1975 Act contains no such age or disability related limits. So once again we are driven to ask what makes an adult child deserving or undeserving of reasonable maintenance?

63.    One factor which is not in the list, but which does feature elsewhere in family law, is the public interest in family members discharging their responsibilities towards one another so that these do not fall upon the state. In the well-known case of Hyman v Hyman [1929] AC 601, the House of Lords held that the court’s statutory powers to order a divorced husband to maintain his former wife were granted “partly in the public interest to provide a substitute for this husband’s duty of maintenance and to prevent the wife from being thrown upon the public for support” (per Lord Atkin, at p 629; see also Lord Hailsham LC, at p 608). However, while the common law recognised a husband’s duty to maintain his wife and his infant children (reluctant though it was to provide effective means of enforcing this), it did not recognise a duty to maintain adult children. Public law, similarly, has not (at most periods) imposed the intra-familial maintenance duties which are known, for example, in French law. So what, if anything, is the relevance of the fact that an applicant’s household is very largely dependent on state benefits (in this case some 75% of their income) to the threshold question, let alone to the quantification of any order to be made?

64.    For these reasons, I have every sympathy for the difficult position in which District Judge Million found himself. He was faced with the complete disinheritance of an adult child in favour of charities in which the deceased had shown little or no interest while alive. The adult child was in straitened circumstances, living in rented accommodation which was almost entirely financed by the public purse, through housing and council tax benefit. These benefits were means-tested by reference to income and to capital and would be lost if there were capital of more than £16,000. The family lived within its modest means, but these too were largely derived from the public purse, the husband’s meagre earnings being supplemented by tax credit, child tax credit and child benefit. Apart from child benefit, these were means-tested, but by reference only to income and not capital. The household goods were old and dilapidated – the family could do with another car, some furniture and carpets and white goods, and had never had a holiday, so it might be regarded as reasonable to spend money on these and thus quite quickly reduce a capital sum to below £16,000 without incurring penalties. On the other hand, mother and daughter had been estranged since the daughter left home to live with and then marry her husband, of whom the mother disapproved, three attempts at reconciliation having failed. The mother had left a letter explaining why she had disinherited her daughter, which the district judge did not find wholly “founded on truth”.

65.    So what was he to do? A respectable case could be made for at least three very different solutions:

(1)     He might have declined to make any order at all. The applicant was self-sufficient, albeit largely dependent on public funds, and had been so for many years. She had no expectation of inheriting anything from her mother. She had not looked after her mother. She had not contributed to the acquisition of her mother’s wealth. Rather than giving her mother pleasure, she had been a sad disappointment to her. The law has not, or not yet, recognised a public interest in expecting or obliging parents to support their adult children so as to save the public money. Thus it is not surprising that Eleanor King J regarded this as the reasonable result: [2009] EWHC 3114 (Fam); [2010] 1 FLR 1613. The Court of Appeal allowed the appeal on the basis that the District Judge had not erred in law and the exercise of his discretion had not been plainly wrong, so Eleanor King J should not have interfered. But Sir Nicholas Wall P commented that (as Wilson LJ had observed when giving permission to appeal) had the District Judge dismissed the claim “I doubt very much whether the appellant would have secured reversal of that dismissal on appeal” (para 59).

(2)    He might have decided to make an order which would have the dual benefits of giving the applicant what she most needed and saving the public purse the most money. That is in effect what the Court of Appeal did, by ordering the estate to pay enough money to enable her to buy the rented home which the housing association was willing to sell to her and a further lump sum to draw down as she saw fit. Housing is undoubtedly one of the first things that anyone needs for her maintenance, along with food and fuel. This was benefits-efficient from her point of view, because it preserved the family’s claims to means-tested income benefits. It was benefits-efficient from the public’s point of view, because it saved the substantial sums payable in housing benefit. She would lose the benefit of the landlord’s repairing obligations, but how valuable this would be is a matter of speculation. It is difficult to reconcile the grant of an absolute interest in real property with the concept of reasonable provision for maintenance: buying the house and settling it upon her for life with reversion to the estate would be more compatible with that. But the court envisaged her being able to use the capital to provide herself with an income to meet her living costs in future.

(3)     He might have done what in fact he did for the reasons he did. He reasoned that an income of £4,000 per year would provide her with her “share” of the household’s tax credit entitlement and capitalised this in a rough and ready way, taking into account some future limited earning potential, at £50,000. He did not expressly consider, and was not presented with the information to enable him to consider, the effect that this would have on the family’s benefit entitlements, and in particular the fact that they would lose their entitlement to housing benefit until their capital was reduced below £16,000.

66.              Some might think that the best choice was between options (1) and (2). Option (1) was not, however, open to the Court of Appeal this time round and is not open to this Court now. The case for option (2) is that, if it is reasonable for the applicant to receive some support, it is reasonable for that support to be meaningful to her and her family, as well as to the public purse. Securing her accommodation is more meaningful than proving her with a capital sum which will be of little use unless she is able properly to reduce it within a relatively short time. This is not to down-play the public interest in charitable giving and the importance of legacies in the funding of charitable activities. But just as the applicant had no expectation of a legacy, neither did the charities. However, the greater the weight attached to testamentary freedom, the smaller the provision which might be thought reasonable in an unusual case such as this. It is, as Black LJ observed, a value judgment. The District Judge did not make his order on the express basis that it would enable the applicant to buy much needed household goods and have a family holiday, but that will be its beneficial effect. Hence I agree with Lord Hughes that it was entirely open to him to make the order that he did, and just as it should not have been disturbed first time round it should not have been disturbed this time either. I have written this judgment only to demonstrate what, in my view, is 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. I regret that the Law Commission did not reconsider the fundamental principles underlying such claims when last they dealt with this topic in 2011.’

Miles v Shearer [2021] – Sir Julian Flaux, Chancellor of the High Court

The Chancellor stated:

’76.  The statutory framework thus involves two questions: (1) has there been a failure to make reasonable financial provision and, if so, (2) what order ought to be made? However, there is in most cases, including this one, a very large degree of overlap between the two questions, not least because, in setting out the factors to be considered by the Court, section 3(1) of the 1975 Act makes them applicable equally to both questions. The correct approach is set out by Lord Hughes JSC giving the leading judgment in the Supreme Court in Ilott v Mitson (No 2) [2017] UKSC 17; [2018] AC 545 at [23]-[24]:

“23. It has become conventional to treat the consideration of a claim under the 1975 Act as a two-stage process, viz (1) has there been a failure to make reasonable financial provision and if so (2) what order ought to be made? That approach is founded to an extent on the terms of the Act, for it addresses the two questions successively in, first, section 1(1) and 1(2) and, second, section 2 . In In re Coventry [1980] Ch 461, 487 Goff LJ referred to these as distinct questions, and indeed described the first as one of value judgment and the second as one of discretion. However, there is in most cases a very large degree of overlap between the two stages. Although section 2 does not in terms enjoin the court, if it has determined that the will or intestacy does not make reasonable financial provision for the claimant, to tailor its order to what is in all the circumstances reasonable, this is clearly the objective. Section 3(1) of the Act, in introducing the factors to be considered by the court, makes them applicable equally to both stages. Thus the two questions will usually become: (1) did the will/intestacy make reasonable financial provision for the claimant and (2) if not, what reasonable financial provision ought now to be made for him?

24. There may be some cases in which it will be convenient to separate these questions, particularly if there is an issue whether there was any occasion for the deceased to make any provision for the claimant. But 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. In particular, questions arising from the relationship between the deceased and the claimant, questions relating to the needs of the claimant, and issues concerning the competing claims of others, are all equally applicable to both matters. The Act plainly requires a broad-brush approach from the judge to very variable personal and family circumstances. There can be nothing wrong, in such cases, with the judge simply setting out the facts as he finds them and then addressing both questions arising under the Act without repeating them…”

77.   The 1975 Act provides in section 1(2) that reasonable financial provision is what it is “reasonable for [the applicant] to receive”, in this instance for maintenance. As Lord Hughes noted at [16] of Ilott these are words of objective standard to be determined by the Court. He cautioned at [17] that, asking whether the deceased acted reasonably is to ask the wrong question under the Act:

 “Nevertheless, the reasonableness of the deceased’s decisions are undoubtedly capable of being a factor for consideration within section 3(1)(g), and sometimes section 3(1)(d). Moreover, there may not always be a significant difference in outcome between applying the correct test contained in the Act, and asking the wrong question whether the deceased acted reasonably. If the will does not make reasonable financial provision for the claimant, it may often be because the deceased acted unreasonably in failing to make it. For this reason it is very easy to slip into the error of applying the wrong test. It is necessary for courts to be alert to the danger, because the two tests will by no means invariably arrive at the same answer. The deceased may have acted reasonably at the time that his will was made, but the circumstances of the claimant may have altered, for example by supervening chronic illness or incapacity, and the deceased may have been unaware of the full circumstances, or unable to make a new will in time.”

78.   Although all cases under the 1975 Act turn on their own facts, it is of significance that, in cases other than those of spouses or civil partners, reasonable financial provision is limited to such provision as it would be reasonable for the applicant to receive for maintenance. The significance of this limitation was emphasised by Lord Hughes JSC in [13]-[14] of Ilott:

“13. This limitation to maintenance provision represents a deliberate legislative choice and is important. Historically, when family provision was first introduced by the 1938 Act, all claims, including those of surviving unseparated spouses, were thus limited. That demonstrates the significance attached by English law to testamentary freedom. The change to the test in the case of surviving unseparated spouses was made by the 1975 Act, following a consultation and reports by the Law Commission…[He then noted the mischief to which the change in the law recommended by the Law Commission was directed] The mischief to which the change was directed was the risk of a surviving spouse finding herself in a worse position than if the marriage had ended by divorce rather than by death. For claims by persons other than spouses the maintenance limitation was to remain, and has done so.

14. The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living.”

79.   Lord Hughes then went on to cite the summary of Browne-Wilkinson J in In re Dennis, decd [1981] 2 All ER 140, 145-146, which, as he says: “is helpful and has often been cited with approval”:

“The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry [1980] Ch 461. In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in In re Christie [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word ‘maintenance’ is not as wide as that. The court has, up until now, declined to define the exact meaning of the word ‘maintenance’ and I am certainly not going to depart from that approach. But in my judgment 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 does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.”

80.   The claimants are both adult children of the deceased, who had lived their own lives and made their own lifestyle decisions without any further financial assistance from Tony [the deceased Testator] after the gifts in 2008. Contrary to [Counsel’s] submissions, what is “appropriate” in their cases is not comparable with what was appropriate in the case of a partner who had shared the life of the deceased, as in the case of Negus v Bauhouse [2008] EWCA Civ 1002 ….

82.   In my judgment the crucial distinction between a case of a cohabitee like Negus and the present case is that, in that case, the deceased was maintaining the claimant in the relevant expensive lifestyle at the time of his death, whereas here neither claimant was maintained in any sense by her father for the best part of ten years before his death. Contrary to what [Counsel] seemed to be suggesting, it is not a question of a different maintenance standard being applicable to the two types of case, but of how the standard is applied in widely differing factual situations.

96.   In all the circumstances, I do not consider that either claimant can demonstrate needs for maintenance which they cannot meet, if necessary by adjustment to their lifestyle as I have indicated. However, even if they could demonstrate such needs, for reasons developed below, I consider that these are outweighed by other factors under section 3(1)(d) and (g).

102  There is no legal obligation on a parent to maintain an adult child as there is for a child under 18. Section 3(1)(d) is concerned with obligations and responsibilities which the deceased had immediately before death, not in the past. This was made clear by the decision of the Court of Appeal in In re Jennings decd. [1994] Ch 286. In that case a middle-aged adult child sought an order for provision of a lump sum towards repayment of his mortgage against the estate of his father, who had neglected to maintain him throughout his childhood. The decision of the judge to award the lump sum on the basis that section 3(1)(d) could be construed as including legal obligations and responsibilities which the deceased had but failed to discharge when the applicant was a child, was reversed on appeal.

103  At 296D-E Nourse LJ said:

“In my respectful opinion that is an impossible construction of section 3(1)(d). While it is true that it requires regard to be had to obligations and responsibilities which the deceased “had,” that cannot mean “had at any time in the past.” At all events as a general rule, that provision can only refer to obligations and responsibilities which the deceased had immediately before his death. An Act intended to facilitate the making of reasonable financial provision cannot have been intended to revive defunct obligations and responsibilities as a basis for making it. Nor, if they do not fall within a specific provision such as section 3(1)(d), can they be prayed in aid under a general provision such as section 3(1)(g).“

104. Likewise, at 300E-G, Henry LJ said:

“[The judge] held that the obligations under section 3(1)(d) need not exist at the time of death. In my judgment that was wrong as a matter of law. The deceased’s freedom of action to dispose of his property must be judged at the time of death, and it is only his then current obligations and responsibilities that must be taken into account. Some undischarged responsibilities from the past may still be current – for instance a child of the deceased might have given up a university place to nurse the deceased through his long last illness and now wish to go to take up that place. The moral obligation there would be both current and clear. But where the undischarged responsibility does not amount to an obligation present at the date of death, the statute does not require it to be taken into account.”

105. It follows that, under section 3(1)(d), the question is what if any obligations or responsibilities did Tony have towards either claimant at the time of his death in 2017. [Counsel] submitted that the answer was none. He had made the gifts to them in 2008 to buy flats and made it clear at that time that they could expect no more financial assistance. On their own case, they both asked for further financial assistance thereafter which he refused. He refused to help Juliet over her first divorce by buying out Steve. It was her mother who helped financially. Lauretta, at least through her mother, seems to have sought similar financial assistance with her divorce in 2016, but Tony again refused. As [Counsel] put it, by the time of his death, whatever obligations he had taken on in the past to bail the claimants out of their financial difficulties were defunct.

107.      [Counsel] relied upon what the judge concluded at [187]: “I do not consider that, objectively, Mary owed an obligation or responsibility to Hetty arising out of her role as quasi-parent to do more than give Hetty a sound financial start in life, which she did.” She also relied upon the fact that, in the section of his judgment headed “The value judgment” dealing with the question whether, viewed objectively, the deceased’s will failed to make reasonable provision for the applicant’s maintenance, the judge referred, at [200] to [201], to the adult child’s claim in In re Dennis and commented on the striking similarity between that case and the situation of the applicant before him. In my judgment, the most that can be drawn from Baynes v Hedger. in the case of an adult child such as each of the claimants, is that, in considering the factor under section 3(1)(d), the court should consider to what extent, at the time of death, the deceased had assumed responsibility for the maintenance of the relevant applicant. If the deceased has disclaimed responsibility, as Tony did in this case, that must be a relevant factual consideration militating against Tony having any obligations and responsibilities towards the claimants at the time of his death. On the basis of the decision of the Court of Appeal in In re Jennings, any obligations or responsibilities he may have had towards them when they were teenagers or in their early twenties are irrelevant.

111. As is clear from the findings I have made, I have concluded that Tony did not have any obligations or responsibilities towards either of the claimants at the time of his death for a number of reasons, which can be summarised as follows:

(1)    Whilst the claimants may well have enjoyed an affluent lifestyle until they were in their early twenties, when their parents divorced, they were not entitled to expect that standard of living indefinitely, nor did they in fact do so, given that, as I have held, the lifestyle choices they both made in terms of marriage and family were not dependent upon their father’s financial support at the time or contingent upon his financial support in the future. The issue, as In re Jennings makes clear, is what obligations and responsibilities Tony had towards either of them at the time of his death, not any obligations or responsibilities he may have assumed towards them up until his divorce from their mother some ten years earlier.

(2)    Tony had made generous provision for both claimants with the gift of money in 2008 which they were able to invest in property. He made it clear at that time that they could not expect any further financial assistance from him (which he repeated in his letter of 30 May 2008 to Lauretta). He maintained that position consistently, declining to assist them financially with their respective divorces. As I have said, that disclaimer of responsibility militates against his having any obligations or responsibilities towards either claimant at the time of his death.

(3)    Since I am not prepared to draw an adverse inference against Pamela or conclude that she lied when she denied revoking the mirror will, this is not a case, unlike In re Goodchild, where the deceased was under some moral obligation to either claimant at the time of his death. Lauretta was in any event not a beneficiary under either of the wills and the entitlement of Juliet and her children does not arise until Pamela’s death. No entitlement arose on Tony’s death.’