Garland v Morris

Hearing dates: 19th and 20th October 2006

Approved Judgment

I direct that pursuant to CPR PD 39A para 6,1 no official shorthand note shall be taken of this

Judgment and that copies of this version as handed down may be treated as authentic

Mr Michael Furness QC:

This is a claim by Yvette Hilary Garland under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) against the estate of her late father Cuthbert Peter Garland (“Mr Garland”). The first defendant is Mr Arnold Morris, who is the executor of Mr Garland's last will. He has played no active part in these proceedings, although he has given evidence. The second defendant is the claimant's sister, Beverley Joy Moore. The claimant and the second defendant are the only children of Mr Garland.

The claimant, who is 43 years old, has three children, Lynnden, aged 21, Sian, aged 9, and Marcus, aged 3. She has never married. The second defendant, who is 46, married Michael Moore in 1981. She and her husband have two children, Richard who is 23 and Alice who is 19. Mr Garland left a will, dated 5th September 1995, and a codicil dated 17th June 1999. By his will and codicil Mr Garland, in the events which have happened, left some modest legacies outside the family and his personal chattels to the second defendant. He gave a legacy of £5,000 to each of the second defendant's children and the two oldest of the claimant's children (the claimant's youngest child was not born until after Mr Garland's death). The residue of the estate was left to the second defendant. The claimant was given nothing.

I will deal in more detail with the basis of the claim below, but, in summary, the claimant argues that the will and codicil fail to make reasonable provision for her maintenance within the terms of section 1 of the Act. She bases her claim principally on her severe financial need, and the difficulties she faces in earning money to maintain herself and her two younger children. At the trial her claim resolved itself into a claim for two lump sums. One is intended to be applied in renovating the claimant's home, the works in question being estimated to cost £19,000 plus VAT. The other is to enable her home to be extended by adding a third bedroom in the loft, at a cost of £15,000 plus VAT.

Mr Garland died on 25th February 2001 and probate of the will and codicil was granted on 10th May 2001. No letter of claim was written on behalf of the claimant until 21st November 2003, and proceedings were not issued until 17th May 2004, over three years after probate, and over 30 months outside the time limit for claims laid down by section 4 of the Act. An order extending time for issuing proceedings was made by Deputy Master Cousins on 2lst April 2004, the Deputy Master having accepted the claimant's explanation that she was unaware of her right to make a claim until she consulted a Citizens Advice Bureau in 2003, after discussing the matter with a friend. The Deputy Master considered that the claim had a reasonable prospect of success and that, notwithstanding the distribution of the estate, there were assets available to satisfy the claim, if successful, which could be realised without undue hardship to the second defendant.

The factual background to the claim

Events up to the death of Mrs Garland

The claimant and her sister grew up in their parent's home in Blackwater, Hampshire. The claimant described her childhood as fairly happy until her early teens when her parents' marriage began to break down and her parents began to have frequent arguments. In early 1982 Mrs Garland left home to live with a man called Alex. The claimant had known about her mother's relationship with Alex for some time before her mother left, but had said nothing to her father about it. By the time Mrs Garland left the family home the second defendant had already left home to get married. This left the claimant living with her father. Their relationship at this time was clearly difficult. Mr Garland resented the fact that the claimant had not told him about Mrs Garland's affair with Alex. He refused to give the claimant a key to the house, apparently because he was afraid that she would give it to her mother. He was upset that the claimant continued to visit her mother, whom he was having followed by a private detective. That said, he wrote a note to her at the time (dated 29th November 1982) in which he expressed the hope that she would continue to be happy at home, while at the same time remaining on the best possible terms with her mother.

Because she did not have a key to the house the claimant was obliged to be home before midnight so as not to disturb her father after he had gone to bed. On one occasion, when the claimant returned home after midnight, her father refused to let her into the house. As a result she spent the night at the home of the mother of one of her friends, This lady suggested that the claimant moved in with her which she did. This was in about late 1982 or early 1983. After leaving her father the claimant saw her mother on a regular basis. She saw her rather more often than the second defendant did, because the second defendant did not approve of her mother's relationship with Alex and refused to see her mother in Alex's company. By this time the claimant had, left school, but with only modest qualifications having obtained a CSE in English and in mathematics. She had a number of temporary jobs at this time and, with her mother's encouragement, she began a floristry course at the local adult education centre. At some point in mid 1983 the claimant's evidence is that Mrs Garland told the claimant that she was going to change her will so as to leave the claimant everything. The claimant says that Mrs Garland explaineçl that she wanted to make sure that if anything happened to her the claimant would be able to buy a house. Mrs Garland was apparently less worried about the second defendant's financial position because she had married and already had a home of her own. Mrs Garland did indeed make a new will which left her entire estate to the Claimant. Sadly, Mrs Garland committed suicide on the 7th November 1983.

Very shortly before her death Mrs Garland had a conversation with the second defendant. In this conversation Mrs Garland was visibly distressed. She told the second defendant that the claimant had bullied her into making a will in her favour and that “if Yvette wants the money so badly she can have it”, Mrs Garland said that she had “had enough” of the claimant, who was always pestering her about money, and that she was exasperated at the claimant's failure to get a job. This evidence casts a rather different light on the reasons for Mrs Garland making the will she did than is apparent from the claimant's evidence. I accept the second defendant's evidence about this conversation, and I think reasonable to infer that the claimant's relationship with her mother was rather more strained that claimant's own evidence suggests. But Mrs Garland was clearly emotionally disturbed at the time, and she committed suicide only two days later. It would not be fair to judge the claimant's behaviour towards her mother on the strength of this conversation. Nor do I think that, to the extent that Mrs Garland's complaints were justified, this has any great relevance to the merits of her claim in these proceedings.

Events from the Death of Mrs Garland to the Death of Mr Garland

Understandably, in the circumstances, Mrs Garland's funeral seemed to have been a very fraught affair for all concerned. There was an argument about the fact that the claimant refused to stand with the second defendant and Mr Garland at the funeral. I accept the second defendant's evidence that this was an incident which upset Mr Garland but I also accept the Claimant's explanation that the reason she was not standing with Mr Garland and her sister was because she wished to stand with Alex and keep him company. The second defendant also recalls that the claimant tried to stop her mother's hearse from leaving from the family home, contrary to her father's wishes. The claimant says she recalls saying she did not much mind where the hearse left from. Shortly before the funeral, the second defendant's evidence is that there were several discussions between Mr Garland and his two daughters about the fact that the claimant had inherited the whole of her mother's estate. This concerned Mr Garland because Mrs Garland's estate was almost entirely derived from a payment which he himself had made to her under a separation agreement about a year before she died. The second defendant also recalls that Mr Garland talked about challenging Mrs Garland's will, either on the basis of Mrs Garland's lack of capacity, or under the Act. According to the second defendant, these discussions ended with Mr Garland expressing the view that in the circumstances it was right that on his death he should leave all his estate to the second defendant. The second defendant says that the claimant accepted that this should be the position.

The claimant, on the other hand, has no recollection of any such agreement. She recalls that she and her sister and her father all attended at her mother's solicitor's offices to hear the reading of her...