David Marcus Isaacs v Michael Anthony Green (as Personal Representative of the Estate of Sybil Rachael Isaacs Deceased)

Hearing dates: 23 and 24 July 2025

Mr David Rees KC:

Introduction

Sybil Rachael Issacs (“ the Deceased”) died on 22 April 2013. She left a will dated 20 November 2006 which left her residuary estate to her two adult daughters Ruth Simone Isaacs (“ Ruth”) and Susan Amelia Ellis-Cohn (“ Susan”). Her will made no provision for her adult son, David Marcus Isaacs (“ David”). David has therefore brought this claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“ the Act”) seeking reasonable financial provision from his late mother's estate.

The First Defendant to this claim is Mr Michael Anthony Green (“ Mr Green”), a solicitor in the firm of Howes Percival LLP. He is the independent administrator of the Deceased's estate having been appointed as such by an order of Master Pester made on 21 March 2021. Ruth is the Second Defendant to the claim and Susan is the Third Defendant.

Although David was initially represented by solicitors, by the time of the trial before me he was acting in person. Mr Green, as the administrator of the Deceased's estate did not play any active role in the trial. He attended on the first day to give evidence, and to be cross-examined about the estate. However, he was not represented and, with my permission, did not participate any further in the trial. Ruth, who supports David's claim, asked questions of a number of witnesses and made short submissions. Susan is the only party who actively opposes David's claim. She lives in California in the United States of America and, as I explain in greater detail below, she suffers from a number of serious and complex health conditions. She gave evidence and was cross-examined by video-link on the first day of the trial, but (with my permission) did not attend for the remainder of the trial. She was however represented throughout the trial by her counsel, Mr James Poole.

I am grateful to all parties for their submissions and recognise that David and Ruth as litigants in person are not familiar with court processes and have at times found participation in the trial not straightforward. I should also record my gratitude to Mr Poole for his submissions on the law which, mindful of his responsibilities as the only member of the Bar instructed in this matter, provided a clear and helpful explanation of the principles applicable to claims under the Act.

The Law

Section 1(1)(c) of the Act entitles a child of a person who has died domiciled in England and Wales to:

“apply to the court for an order under section 2 of this Act on the ground that 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 not such as to make reasonable financial provision for the applicant.” It is not in dispute that the Deceased died domiciled in England and Wales and that David is a child of the Deceased. He is therefore eligible to bring a claim under the Act.

The meaning of the phrase “reasonable financial provision” is explained by section 1(2) of the Act. In the case of a child of the deceased, such as David, it means:

“such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

Important guidance on the term “maintenance” was provided by the Supreme Court in Ilott v The Blue Cross & Others [2017] UKSC 17; [2018] AC 545. At paragraphs [14] and [15] of his judgment (with which all the other members of the court agreed) Lord Hughes JSC stated as follows:

“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…

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… 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.”

In the same passage Lord Hughes quoted with approval what had been said by Browne-Wilkinson J in In re Dennis, decd [1981] 2 All ER 140, 145–146:

“The applicant has to show that the will fails to make provision for his maintenance: see In re Coventry, decd … [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, decd … [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.”

Section 2(1) of the Act provides as follows:

“Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that 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 not such as to make reasonable financial provision for the applicant, make any one or more of the following orders…”

The section then proceeds to set out a menu of potential orders available to the court in such circumstances, which include an order for the payment of a lump sum out of the estate (section 2(1)(b)) and an order for the transfer to the applicant of property comprised in the estate (section 2(1)(c)). Section 2(4) provides a wide power enabling the court to include consequential and supplemental provisions within its order:

“An order under this section may contain such consequential and supplemental provisions as the court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between one beneficiary of the estate of the deceased and another and may, in particular, but without prejudice to the generality of this subsection—

(a) order any person who holds any property which forms part of the net estate of the deceased to make such payment or transfer such property as may be specified in the order;

(b) vary the disposition of the deceased's estate effected by the will or the law relating to intestacy, or by both the will and the law relating to intestacy, in such manner as the court thinks fair and reasonable having regard to the provisions of the order and all the circumstances of the case;

(c) confer on the trustees of any property which is the subject of an order under this section such powers as appear to the court to be necessary or expedient.”

Section 3(5) of the Act requires the court to take into account the facts as they are known at the date of the hearing.

As the Supreme Court indicated in Ilott v The Blue Cross (supra), claims under the Act are often considered by reference to two questions:

(1) Has there been a failure to make reasonable financial provision for the claimant?

(2) If so, what order ought to be made?

However, there is a large degree of overlap between these questions and at para [24] in Ilott Lord Hughes JSC held:

“…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,...