Espinosa v Bourke
|England & Wales
|LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE ALDOUS,LORD JUSTICE BUXTON
|17 December 1998
|Judgment citation (vLex)
| EWCA Civ J1217-9
|17 December 1998
|Court of Appeal (Civil Division)
 EWCA Civ J1217-9
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION BLACKPOOL DISTRICT REGISTRY
(MR JUSTICE JOHNSON)
Royal Courts of Justice
Lady Justice Butler-Sloss
Lord Justice Aldous
Lord Justice Buxton
MR ALISTAIR NORRIS QC & MR IAN F JOHNSON & (MR D REES—15/12/98) (Instructed by Leslie Harris, Priestley & Fisher, Lancashire, FY5 2AA) appeared on behalf of the Appellant
MR PHILIP RAYNOR QC & MR STEPHEN PRITCHETT (Instructed by Pearl Assurance House, Derby Square, Liverpool, 12 9XL) appeared on behalf of the Respondents
This is an appeal by a daughter from the decision of Johnson J on the 6th March 1998 to dismiss her claim for reasonable provision out of the estate of her deceased father. The deceased left his whole estate to the third respondent,(Andrew), his grandson and the son of the appellant and made no provision for her. The respondents to the appeal are the two executors and Andrew. The deceased died on the 20th September 1995, leaving an estate with a probate valuation of approximately £196,000.
The appellant was born in 1942. She has had what the judge described as a chequered matrimonial history with five marriages and a number of partners. Andrew is the son of the appellant`s 3rd marriage. He is now 23. He was adopted by the appellant and her 4th husband but by 1983 the judge found that, as a result of the appellant`s involvement in `the horse world', he had begun to live with his grandparents on a full time basis. Thereafter he was cared for by them. In 1970 the appellant`s paternal grandmother died leaving an estate, the value of which is unknown, from which the appellant received only £300, but she was told by her parents that on their deaths she would inherit the portfolio of shares which was divided between her parents. In August 1987 the appellant`s mother was ill and the disposition of her estate was discussed. Her will left everything to her husband. The judge found:—
The plaintiff says that, in the course of the discussion, her father said that if his wife did not change her will, he would see to it that, on his death, the mother`s estate would pass to the plaintiff. The plaintiff quoted the words used by her mother to her father:
"Do what you want with your share but promise me that my half will go, eventually, to Sandra."
That the father said he would do.
The only evidence relating to this occasion, is that of the plaintiff herself. Although, in many respects, I regarded her evidence as wholly unreliable, I do conclude that her account of this occasion is one that I should accept."
The mother died on the 5th December 1987 leaving an estate valued for probate of less than £70,000. On her death, the deceased aged 79 was left to look after Andrew then aged 12. The appellant visited every day to run the home. The deceased and the appellant then agreed that his house should be sold and he and Andrew moved in to live with the appellant in her house in 1988. The deceased's house was sold for £71,000 net. The appellant had had a part-time job which she gave up and she devoted herself to running the house, upon the understanding that the deceased would provide the whole of the interest on his building society account for the upkeep of the family. He paid her £350 a month for the upkeep of the family. The judge found that in fact the deceased drew out the whole of the interest in his building society account, a sum greater than £350 a month and that he spent the extra money upon the family, as he had promised to do.
The appellant owned her house subject to mortgage. The deceased paid some £7500 for improvements to the house and discharged the mortgage in October 1994. The total payments on the house, including improvements amounted to about £ 16000. It seems clear that the improvements were designed to improve the house for the occupation of the deceased as well as enhancing its value. The judge found that the purpose of paying off the mortgage was to take advantage of tax exemptions.
In 1988 the deceased made a will leaving his estate to the appellant. On the 2nd December 1994 he executed his last will in which he left his entire estate to Andrew. In clause 5 he said:—
"I have made no provision for my daughter, Sandra Wilson, because she has, during my lifetime, been adequately provided for and she has also shown, in my opinion, a degree of irresponsibility".
The judge found that the deceased disapproved of his daughter`s lifestyle, in particular that she brought men, usually younger men to live in the small three bedroomed house and to share her room. At the time of the execution of the will the appellant had recently been twice to Spain and appears to have commenced her relationship with a Spanish fisherman, Mr Espinosa, who is now her husband, a young man 20 years younger than herself. There were also various incidents which increased the dissension in the house. In the first 7 months of 1995 the appellant spent 22 out of 30 weeks in Spain with Mr Espinosa. Andrew was out at work. The deceased who was 87 was looked after by a cleaner and by `meals on wheels`.
The judge said:—
"It doesn`t seem to me, that whether one looks at this matter—this period—subjectively, through the eyes of the plaintiff`s father, or as an objective bystander, the plaintiff was entitled to assert any moral obligation for her commitment to her father, during this period. For all practical purposes, she was living in Spain."
On the 5th August the appellant returned and brought Mr Espinosa back to live in the house, without a job and with no money, as the judge expressed it—"just another mouth to feed". The deceased died on the 20th September 1995.
The appellant claimed under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 that the will had failed to make reasonable provision for her. At the hearing both counsel appear to have concentrated upon the issue of moral obligation as the predominant question and, not surprisingly therefore, the judge also focused upon it in his judgment. He referred briefly to the provisions of section 3(1). Thereafter he concentrated principally upon the issue of moral obligation and whether it had been discharged by the deceased. He found that the deceased owed a moral obligation to the appellant which arose in two ways:
1. the promise to leave her the mother`s share of the paternal grandmother`s portfolio, to which I have referred above, and
2. care of the father for the last seven years of his life. The judge said:—
"It is the fact, that for some years the plaintiff did care for her father—the deceased—in particular, in the period from 1988 to his death. But, it will be apparent from what I have said, that the care that she gave him was limited to the provision of food, cleaning and the like for which the deceased was making substantial payments, either directly to her or by making other provision for the family out of his building society account."
The judge concluded:—
"It does not seem to me, that the circumstances of this case come anywhere near entitling me to interfere with the will that was made by the plaintiff`s father. As I have said, it seems to me, that he was fully justified in the will which he made and that seems to me to be so, as I have said, whether one looks at this matter through his eyes or looks at it objectively.
There does not seem to me, to be anything about the circumstances of this case, to have imposed upon the deceased any continuing moral obligation. He had fulfilled his part of the bargain, in many respects. He had devoted the whole of his income to the benefit of the family. He had made capital provision for improvements and for discharge of the mortgage but, he had been put into a situation with which, as I find, he can have been, by no means happy and judged objectively, what was happening at the end of 1994, seems to me to have discharged or vitiated any remaining obligation upon him. As to the commitment to him, by the plaintiff, in the year preceding her death, her commitment can be described only as minimal, in the extreme."
He dismissed the appellant`s claim.
Mr Norris QC for the appellant submitted that the judge fell into error in his approach to the claim. He concentrated on the issue of moral obligation and did not consider the criteria under section 3(1) as a whole. Mr Norris submitted that the most significant factor for the court to take into account was the Applicant's needs and resources and the judge failed, despite the evidence before him, to make any findings at all about the financial position of the appellant, (section 3(1)(a)). An adult child was in no special position and this appellant was, at the time of death, dependant upon the deceased. At the time of the hearing her financial position was precarious. The judge, having found that a moral obligation existed, was in error in concluding that it had been discharged.
Mr Herbert QC submitted that the judge had to make a value judgment and the appellate court should not interfere unless he was plainly wrong. A court should be reluctant to disturb a will. An adult child capable of earning a living had a big hurdle to overcome unless moral obligation or special circumstances could be established. He accepted that the judge did not make findings about the appellant`s financial position but submitted that on the facts of this case it was not necessary to do so. In any event it must be...
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