The adult daughter of the deceased claimed under the 1975 Act. 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.
Held: The appeal against the award in favour of the daughter failed. An adult child may not be absolutely unentitled to claim for provision from an estate, where it can be shown that deceased wanted to benefit the child, and that assets had acquired substantial and unexpected value after death.
An adult child does not have to show that the deceased owed him or her a moral obligation or that there were other special circumstances in order to succeed under the Act; and in deciding whether the disposition of the deceased’s estate makes reasonable provision for the applicant, the trial judge is not exercising a discretion but making a value judgment based on his or her assessment of the factors contained in section 3(1) of the Act.
Sir John Knox said: ‘In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s 3 of the Inheritance (Provision for Family and Dependants) Act 1975 requires the court to have regard. Some factors may be neutral but many will go into the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. In Re Coventry … there was placed in the scales a factor of major weight against the proposition that there had been a failure to make reasonable financial provision and that was that the plaintiff was capable of earning, and was earning, his living. This meant that for the scales to be turned and for the court to find that there had been a failure to make reasonable financial provision for the plaintiff a factor of great weight would be needed in the opposite scale. Typically, the weightiest factor in favour of an applicant seeking to show that there has been a failure to make reasonable financial provision for him or her, is present when there is found to have been a moral obligation on the deceased to make financial provision for the applicant. But that factor was held by Oliver J not to be present in Re Coventry . . [The] argument that an adult child cannot make a successful application unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the court to decide that the scales fall in favour of the conclusion that there has been a failure to make reasonable financial provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry , or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court’s conclusion that there has been a failure to make reasonable financial provision but the use of the phrase ‘special circumstance’ does not advance the argument. The work ‘special’ means no more than what is needed to overcome the factors in the opposite scale.’
Butler-Sloss LJ said: ‘Accordingly while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence.’ and ‘I do not, for my part, extract from the decisions in Re Coventry and Re Jennings, the degree of support for the defendants’ case that Mr Crawford has submitted. It is clear to me that the 1975 Act does not require, in an application under s 1(1)(c), that an adult child (whether son or daughter) has in all cases to show moral obligation or other special circumstance. But on facts similar to those in Re Coventry and even more so with the comparatively affluent applicant in Re Jennings, if the facts disclose that the adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as a moral obligation. The judge expressly found that there was no moral obligation or responsibility to be found in this case.’
Judge LJ said: ‘The decision in Re Coventry was considered in Re Jennings, deceased, [1994] Ch 286, where Nourse LJ concluded that in the case of an application by an adult son of the deceased who was fit and able to work, and in work, some ‘special circumstance, typically a moral obligation’ was required. The application ‘failed because the deceased owed him no moral or other obligation and no other special circumstance was shown’. The use of the word ‘typically’ is revealing. Nourse LJ did not say ‘invariably’ or ‘necessarily’. If he had done so he would have been using language which does not appear among the statutory criteria. Accordingly, while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence.
Judges:
Lady Justice Butler-Sloss, Lord Justice Judge, Sir John Knox
Citations:
Gazette 20-May-1998, Times 08-May-1998, Gazette 03-Jun-1998, [1998] EWCA Civ 764, [1998] 2 FLR 346
Links:
Statutes:
Inheritance (Provision for Family and Dependants) Act 1975
Jurisdiction:
England and Wales
Citing:
Cited – In Re Coventry (deceased) CA 3-Jan-1979
The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
Cited – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Cited – Re Debenham deceased 1986
The court considered what special circumstances had to be shown to found a claim under the Act other than by a spouse: ‘It is also said on behalf of the charities that before I can make an order I will have to find that there were special . .
Cited by:
Cited – Re Pearce, Deceased, Pearce v Pearce CA 25-Jun-1998
The claimant, the adult son of the deceased sought provision from the estate. He said that he had taken a substantial part in the refurbishment of a family property. Later his parents had separated. At first instance Behrens J had held there was a . .
Cited – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Cited – Espinosa v Bourke CA 1999
The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
Cited – Garland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
Cited – Ilott v Mitson and Others CA 27-Jul-2015
The claimant was the adult and long estranged daughter of her now deceased mother. The mother’s will left the estate entirely to animal charities. The daughter sought reasonable provision under the 1975 Act.
Held: The claimant’s appeal . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 30 May 2022; Ref: scu.144242
