Heirs in UK Law

"Causes of action" in the section means, I think, rights which can be enforced - or liabilities which can beredressed - by legal proceedings in the Queen's Courts, These new survive against the estate of the deceased person. Whilst I entirely agree with that decision, I do not think that the fact that a cause of action is discretionary automatically takes it out of the Act. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death.

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… 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 … lack of disposition produces an unreasonable result in that it does not make any … provision for the applicant —and that means, in the case of an applicant other than a spouse for that applicant's maintenance."

In an application under the 1975 Act, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to "have regard" and the overriding consideration is what is "reasonable" in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court's attention.

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. 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:

An adult child is, consequently, in no different position from any other applicant who has to prove his case. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales.

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 1975 Act requires the court to have regard. Some factors may be neutral but many will go in the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. The word "special" means no more than what is needed to overcome the factors in the opposite scale.

What is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by. On the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.